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George  Washington  Flowers 
Memorial  Collection 

DUKE  UNIVERSITY  LIBRARY 

ESTABLISHED  BY  THE 
FAMILY  OF 

COLONEL  FLOWERS 


Negro  Culture 


Printed  and  in  Manuscript 


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3FFICBRS  0?  THE  SUPSEME  COURT. 

DM  "  •    rfi£SE  ;  •  tus     NS. 


Hon.  A.  .1.  WALKER,   Chim     I   i  pice. 
Hon.  G.  W.  STOKE,       )  A  , 

.     >  ASSOCIATE  .  /  t :  TTrp:* 
Ron.  R.  W.  WALKER,  I 


M.  A.  BALDWIN,  Attorney    G$nbkj  i, 
rOHN    D.    PHSLAN,  Clirk. 
WA'-  :  D.   BHOWN,  M/  mi  . 


TA  ES. 


Ar.ron  (n  slave)  i                  

12 

Ala.  &Tenn.  Riv 

391 

Ala.  A  Tenn.  Rivers  3: 

!■ 

43G 

Ander  - 

Bl2 

Atmistead  v.  Coi 

5-12 

124 

"T1 

Baker,  Fry  it  Co.  v.  Irrgersoll. . . 

416 

.   of   Montgomery   v.   i'k.u- 

nett's  Adm'r 

178. 
.311 

v  v.  Bell 

v.  The  State 

81 

5  IS 

IBs  Adm'r  v.  Smith 

Beene'B  Adm'r  v.  Phillips, 

£10 

Bell  ats.  Barker 

375 

Bell  v.  Bell's  Adm'r 

460 

Ecu  (.1  slave)  v.  The  £tate 

9 

Bibb  at--.  Men  ph 

g  v.  Whittle 

2cs 

irant  v.  Si                   a  .... 

489 

Betum  v.  :                   .  Y 

5114 

Bo?kin  &  MeRae  v.  Dobionde  & 

Co 

602 
510 

Brooks  v.  Ruff 

Buck*  1       .                 : 

Bttidice  v.  1                 :o-e  of  A!a- 

B;ir:i-   <      I  i 321 

_7 

622 

ey  v.  The  State 

Chadwick  att  

Cheek  v.  1  .  107 

481 

Adm'r G27 

117 

I   v.  Pitta 624 

Collins'  Adtrj  315 

r  v.  Tr&wick's  Adm'r 

7.  Baine 

Cos  v.  Railroad 

335 

Cox,  Brainard  &  Co.  v.  Foacue. .  41i) 
; 
1 
Ory lines  v.  White  &  Jobnsou.  . .  .  473 
Gua'nin 

and  Wife 327 

Davi  pbell 

Devaughn  ats.  Heath 60U 

Devaughu  v.  Heath 

Dohlcmde   &  Co.  ats.  Boykin  & 

502 

enters  ats.  Jack 

I    

Douglass  v.  Montgomery  &  West 

Feint  Railroad  Co '• 

Dndle;  



ibarn 117 

- ■.  •  •   607 

!e  Hill,  in  re  Armistead.  .  . 
■ 
t 9 


■3 


TABLE  OF  CASES. 


Ex  parte  Maxwell 396 

Ex  parte  McCants 715 

Ex  parte  N.  E.  &  S.  W.  Ala.  Rail- 
road Co 608 

Ex  parte  Northington 400 

Ex  parte  Stringer •   t'.65 

Falkner  ats.  Wright 231 

Flanagan  ats.  Patter.-on 427 

Foscue  ats.  Qox,  Brainard  &  Co..  419 
Fowler  ats.  Wood  &  Kimbrough,  292 

Oarlington  v.  Jones 196 

Grand    Lodge    of    Alabama  ats. 

Burdine 335 

Greene  v.  McGhee 119 

Greene  ats.  Ware 383 

Greene's  Executor  v.  Speer  and 
Wife 450 


KiDney  v.  The  State 104 

Lambert  ats.  Kannady 314 

Lawrence  v.  Jones 637 

Lawrence  v.  Ware 477 

Lee  <L  Norton  ats.  The  State 102 

Longmire  v.  Pilkington 293 

Mahone  ats.  McGehee 212 

Manly's  Adm'r  t.  Turnipseed  and 

Wife 440 

Martin  ats.  Orinond 526 

Martin  v.  Heed 1 54 

Mastin  ats.  Moseley's  Adm'r 111 

Maull  v.  The  Staie C8 

Maxwell,  Ex  parte £96 

McAllister's  Executor  v.  McAl- 
lister.,     306 

McCall  ats.  Polly 24G 


Hall  ats.  Hunt's  Executor 634  [  McCampbel)  at?.  Dnvis 539 

Hampton  ats.  Miller 357  j  McCants,  Ex  parte 715 

Harrigon  v.  McCrary 619  ,  McCollum  v.  Prewitt 4f.»8 

Harrison  v.  The  State 61  j  McCrary  ata.  Harrison 619 


Heath  ats.  Devaughn 523 

Heath  v.  Devaughn 606 

Herrin  v.  Buckelew 510 

Hill,  Ex  parte  (in  re  Arraistead) . . .  667 

Kill,  Exparte  (in  re  Willis  et  al.). .  637 


McGehee  v.  Mahone 212 

McGehee  v.  Rump 580 

McGhee  ats.  Greene 119 

McGill  v.  Monette 260 

McG air e  v.  The  State €9 


Hopkicsou  v.  Shelton 303  I  McLemore  v.  Nuckolls 5r'l 

Hudson  ats.  Burns 32 1  j  Meaner  v.  Cox,  Brainard  <fc  Co . .   :  56 

Hunt's  Executor  v.  Hall 634    flemphis  &  Charleston  Railroad 

Hunter  ats.  Wilkinson   225        Company  v.  Bibb '330 

Huttenstein  v.  The  State 64    Merkle  v.  The_State 45 

Ingersoll  ats.  Baker,  Fry  &  Co.     416  j  Miller  v.  Hampton 357 


Isham  (a  slave)  v.  The  State 93 

Ivey  ats.  Williams 198 

Ivey  ats.  Williams 220 

Jack  et  al.  (slaves)  v.  Doran's  Ex- 
ecutors    222 

Jemieon  v.  Smith 140 

Johnson  ats.  Smith 562 

Johnson  v.  The  Stat  e 72 

Jones  ats.  Espy 454 

Tones  ats.  Garlington 196 

Jones  v.  Jones'  Executor 574 


Mitchell  v.  Turner 568 

Mitchell  ats.  Union  Iudia-Rubber 
Company £17 

Mob'.le  &  'Girard  Railroad  Co.  ate. 
Cox S35 

Monette  at?.  McGill 285 

Montgomery  &  We6t  Point  Rail- 
road Co.  ats.  Douglass 5C6 

Montgomery  &  West  Point  Rail- 
road Co.  ats.  Owsley 485 

Moore  ats.  Smith 542 


Jones  ats.  Lawrence 617  j  Moseley's  Adm'r  v.  Mastiu 171 

Kannady  v.  Lambert 314  j  Murphy  v.  The  State 48 

Kaster  ats.  Sterrett's  Executor.  .  404  |  labors  &   Gregory  ats.   Ala.   & 


Kelly,  Exparte 89 

Kelly  ats.  Webb    349 

Kimbrough  &  Wood  -v.  Fowler..   292 

King  and  Wife  v.  Avery 124 

King's  Adm'r  ats.  Borurn 534 


Tenn.  Rivers  Railroad  Co 391 

Nealate.  Ward 4l3 

North-East  &  South-West  Rail 

road  Co.,  Exparte 

Northington,  Export*. 


f08 
4'.-0 


TABLE  OF  CASES 

fcfacfcoUs  ats.  McLemore  691 

Oaks  &  Mills  ats.   Ala.  &  Tens. 

R,~ers  Railroad  Co 625 

Ogbourne  ats.  Roberts  and  Wife,  129 

Oliver  v.  The  State 41 

Or  ;Ond  v.  Martin 626 

Owsley  ats.  Montgomery  &  West 

Point  Railroad  Co 485 

Parish  v.  Parish 619 

Patterson  v.  Flanagan 427 

Pbillips,  Goldsby  &  Blevins  ats. 

Beene's  Adm'r 310 

Pilkir.gtou  ats.  Longmire 293 

Pitta  ats.  Cokcr 624 

Plaunett's   Adm'r  ats.    Bank  of 

Montgomery 178 

Point  v.  The  State 54 

Pollard  ats.  Cleveland 481 

Polly  v.  McCall 246 


Smith  v.  Moore 84? 

Smith  v.  The  S'ate 84 

Speer    and    Wife  ats.    Greenes 

Executor 450 

Srate  ats.  Aaron  (a  slave) rj 

State  ats.  Bass 87 

State  ats.  Ben  (a  slave) 9 

State  ats.  Cawley 69 

Sta>e  ats.  Cheek 107 

State  ats.  Harrison 64 

State  ats.  Huttenstein 61 

State  ats.  Isham  (a  slave) 93 

State  ats.  Johnson 72 

State  ats.  Kinney t  04 

State  v.  Lee  &  Norton 102 

State  ats.  Maull 68 

State  ats,  McGuire f,o 


State  ats.  Merkle 4;-, 

JPrewitt  ats.  McColIum 498   '  8ft**8  a<8  MurPhy 48 


Raglaad  &  Howell   v.    Wynn'b 

Adm'r • 270 

Railroad  Co.  (Ala.  <fc  Tenn.  Riv- 
ers) v.  Oaks  &  Mdls 625 

Rai'road  Co.  (Ala.   &  Tenn.  Riv- 
ers) v.  Nabors  &  Gregory 891 

Ra.Iroad  Company  (Memphis   k 

Charleston)  v.  Bibb 630 

Rail-oad  Co.   (Mobile  &  Girard) 

atj.  Cox 335 

Railroad  Company  (Montgomery 

&  West  Point)  ats.  Douglass..  666 
Railroad  Company  (Montgomery 

k  West  Point)  ats.  Owsley 485 

Railroad  Co.  (North-East  &  South 

West  Ala.)  Ex  parte 608 

Reed  ats.  Martin '. 154 

Roberts  and  Wife  v.  Ogbonrne. .   129 

Roney's  Adm'r  v.  Winter 234 

Ru5  ats.  Brooks 409 

Rump  ats.  McGeehe 680 

Sauiabury  ats.  Alexander 456 

Sawyer  ats.  Wilson 659 

Schwartz  v.  The  State >75 

Seott  v.  The  State 23 

Sheiton  ats.  Hopkinson 305 

Sibley's  Heirs  ats.  Bondurant..  489 

Smith  ats.  Bedell's  Adm'r 648 

Smito  ats.  Jemison 140 

Sait'i  v.  Johnson 66° 


Slate  ats.   Oliver 41 

S'ate  ats.  Point 54 

State  ats.  Schwartz 75 

State  ats.  Scott  (a  slave) 23 

State  ats.  Smith 84 

State  ats.  Stein 29 

State  ats.  Thompson 58 

State  ats.  Ward 66 

Steele  «fe  Bnrgess  v.  Townsend .  .   201 

Stein  v.  The  State 20 

Sterrett's  Executor  v.  Kaster. ...  404 

Stone  &  Best  v.  Wa'son 236 

Strickland  ate.  Taylor 571 

Strickland's  Adm'r  v.  Walker. . .   512 

Stringer,  Ex  parte 665 

Stubbs  v.  Beene's  Adm'r 555 

Taylor  v.  Strickland 571 

Thompson  v.  The  State 58 

Tillman  v.  Chadwick 332 

Townsend  ats.  Steele  &  Burgess,  201 

Trawick's  Adm'r  ats.  Connor 253 

Turner  ats.  Mitchell 688 

Turnipseed  and  Wife  ats.  Manly's 

Adm'r 440 

Union  India-Rubber  Company  v. 

Mitchell 317 

Walker  ats.  Cresswell's  Executor,  184 
Walker  ats.  Strickland's  Adm'r.  .612 
Walthall  ats.  Wynn  and  Wife. ..  273 

Ward  v.  Cameron's  Adm'rs 622 

Ward  v.  Neal 413 


8 

I  v.  The  State 65 

Ware  v.  Greene 3S3 

Ware  ats.  Lawrence 471 

Watson  v.  Colli]  515 

Watson  ats.  Stone  &  Best 

Watt's  AdtuV  v.  Wn'A' 



Webb  v.  Kelly     

.  Boiling 

insoo  v.  Hunter 

Williama  v.  [vej r.'S 

"Willi  


TABLE  OF  CASES. 

WflHan  set:  ft  Mc  Arthur  v.  Woolf,  296 
.  (Sc 

-•  Hill,  itl  re.) 637 

Wilson  v.  Sawyer  559 

Winter  ats.  Rom  234 

v.  Barker 311 

Wood  &'Ki                             .ler.     292 
Vic  Ar- 
thur    296 

Falkner 231 

id  A 

Howell 27Q 

Wynne  v.  Wins  man< 

Wynne  and  Wife  v.  Walthall.  .  .   272 


E  R  R  A  T  A . 


In  Scott  v.  The'SI  nit  last  line  at  hottoi 

In  Ex  parte  Kelly,  p.ig  h  line  from  bottom  of  page,  for  "and"    read 

In  Jamison  v.  Smith,  |  couil  line  , 

le  &  Bui':; 


11EP0RTS 

CASES    ARGUED   AND    DETERMINED 

|n  (hf  Supreme  (louri  of  Jlabama. 


BEN"  (a  slave)  vs.  THE  STATE. 

[indictment  against  slats  roB  murder  or  ANOTHER  slave.] 

1.  Admissibility  of  character  of  deceased,  ns  evidence  for  prosecution. 
On  a  trial  for  murder,  the  prosecution  cannot  adduce  evidence  of 
the  peaceable  character  of  the  deceased,  when  it  has  not  been 
assailed  hy  the  prisoner. 

2.  Dying  declarations. — The  dying  declarations  of  the  deceased,  re- 
specting the  state  of  feeling  which  existed  between  himself  and 
the  prisoner,  are  not  competent  evidence  for  the  prosecution. 

From  the  Circuit  Court  of  Baldwin. 
Tried  before  the  Hon.  C.  "W.  Rapier. 

The  prisoner  in  this  case,  a  slave,  was  indicted  for  the 
murder  of  another  slave,  and  pleaded  not  guilty  to  the 
indictment.  "On  the  trial,"  as  the  bill  of  exceptions 
states,  "during  the  opening  examination  of  the  witnesses 
for  the  prosecution,  the  State  proposed  to  prove  the  good 
character  of  the  deceased,  as  a  peaceable,  well-behaved 
negro.  The  prisoner  objected  to  this  evidence ;  but  the 
court  overruled  the  objection,  and  allowed  the  evidence ; 
and  the  State  thereupon  proved,  that  the  deceased  was  a 
person  of  good  character,  was  a  member  of  the  church, 


10 SUPREME  COURT  

Ben  (a  slave)  v.  The  State. 

and  was  of  peaceable  character;  to  the  admission  of 
which  evidence  the  prisoner  excepted.  The  prisoner 
offered  no  evidence  of  the  character  of  the  deceased  du- 
ring the  trial,  nor  was  any  such  evidence  given  in  his 
behalf." 

"During  the  progress  of  the  cause,  and  in  the  opening 
examination  of  the  witnesses  for  the  prosecution,  and 
after  several  witnesses  had  been  examined  as  to  the  facts 
oJ  the  homicide,  the  master  of  the  deceased  was  -placed 
on  the  stand  by  the  State  as  a  witness,  and  testified,  that 
he  came  to  the  deceased  after  he  had  received  his  death- 
wounds,  and  was  satisfied  that  he  would  die,  and  told  him 
so;  that  the  deceased  was  conscious  that  he  would  die 
from  his  wounds,  and  so  expressed  himself,  and  directed 
his  fellow-servauts  what  to  do  with  the  little  effects  he 
had;  that  this  was  early  in  the  morning,  and  that  the  de- 
ceased died  on  the  following  evening,  about  night.  The 
State  then  proposed  to  give  in  evidence  the  declarations 
of  the  deceased  to  his  master,  respecting  the  state  of 
ieeling  between  himself  and  the  prisoner.  The  prisoner 
objected  to  the  introduction  of  this  evidence  ;  but  the 
court  overruled  the  objection,  and  admitted  the'evidence. 
Tttf>  master  thereupon  testified,  that  the  deceased  said, 
'  he  was  knocked  down,  but  did  not  know  who  did  it; 
that  some  time  before  he  had  met  the  prisoner,  (who  was 
a  runaway,)  near  the  premises  of  his  master,  and  told  him 
that  he  had  better  go  home,  and  that  he  would  tell  his 
master  if  he  did  not;  to  which  the  prisoner  replied,  that 
he  intended  to  do  so  the  next  day.'  To  which  ruling  and 
admission  of  evidence  the  prisoner  excepted." 

Smith  &  Chandler,  for  the  prisoner. 

M.  A.  Baldwin,  Attorney-General,  contra. 

The  opinion  of  the  court  was  delivered,  Feb.  16,  '61,  by 
A.  J.  WALKER,  C.  J.— It  has  been  decided  in   this 
State,  that  the  bad  character  of  the  deceased  is  compe- 
tent evidence  for  the  accused,  where  the  circumstances 
are  such  that  they  would  be  illustrated  by  such  character. 


OF  ALABAMA.  ■     11 


Ben  (a  slave)  v.  The  State, 


The  reason  upon  which  that  decision  rests,  is,  that  the 
slayer  must  be  reasonably  presumed  to  act  upon  th< 
cumstances  surrounding  him,  as  they  are  colored  by  the 
bad  character  of  the  deceased;  and  that,  therefore,  it  is 
but  just  to  the  accused  that  the  jury  should  know  that 
character.  We  do  not  think  that  this  reasoning  requires 
us  to  hold,  that  the  State  may  go  into  evidence  of  the 
peaceable  character  of  the  deceased,  when  it  is  not  as- 
sailed on  the  part  of  the  accused.  If  the  character  of  the 
deceased  was  that  of  a  peaceable  man,  the  circumstances 
ma)- safely  be  left  to  speak  their  own  language  :  it  is  not 
requisite  to  their  interpretation  that  the  character  should 
be  known. 

The  character  of  a  witness  for  truth  cannot  be  sup- 
ported, until  it  has  been  assailed  ;  and,  on  the  other  hand, 
the  character  ot  one  charged  with  a  criminal  offense,  can 
not  be  assailed,  except  in  reply  to  evidence  of  good  cha- 
racter. These  cases  show  that,  in  holding  the  bad  cha- 
racter of  the  deceased  admissible  for  the  accused,  and 
denying  that  good  character  is  admissible  for  the  State, 
we  have  analogies  in  the  law  to  support  us.  We  think  it 
much  safer  not  to  extend  the  rule,  in  reference  to  the  ad- 
missibility of  the  character  of  the  deceased,  so  far  as  to 
permit  the  State  to  adduce  primarily  evidence  of  good 
character.  The  authorities,  with  the  exception  of  Dukes 
v.  State,  (11  Ind.  557,)  to  the  report  of  which  we  have 
no  access,  give  the  rule  no  greater  extension,  than  to  em- 
brace evidence  of  bad  character  adduced  by  the  defend- 
ant ;  and  we  think  it  safer  to  so  limit  the  rule. — State  v. 
Hicks,  27  Miss.  588;  Monroe  v.  State,  5  Georgia,  137; 
State  v.  Tacket,  1  Hawks,  216 ;  State  v.  Barfield,  8  Ire- 
dell's Law,  344;  Wharton  on  Horn.  249;  Franklin  v. 
State,  29  Ala.  14  ;  3  Grecnleaf  on  Ev.  27. 

[2.]  The  court  erred,  in  permitting  the  State  to  give  in 
evidence  the  dying  declaration  of  the  deceased,  as  to  the 
state  of  feeling  existing  between  himself  and  the  prisoner. 
We  decided  in  Mose  v.  State,  (35  Ala.  421,)  that  the  ad- 
missibility of  dying  declarations  was  restricted  to  state- 
ments llas  to  the  circumstances  immediately  attending 


12  SUPREME  COURT 


Aaron  (a  slave)  v.  The  State. 


the  act,  and  forming  a  part  of  the  res  gestcc."     That  de- 
cision is  conclusive  of  the  question  now  presented. 

Judgment  reversed,  and  cause  remanded.  The  prisoner 
must  remain  in  custody,  until  discharged  by  due  course 
of  law. 


AAROtf  (a  slave)  vs.  THE  STATE. 

[indictment  against  slave  for  murder  of  white  person] 

1.  Competency  of  juror. — A  mere  occupant  and  tenant,  tinder  a  yearly 
letting,  of  a  room  used  by  him  as  a  sleeping  apartment,  is  not  a 
freeholder,  within  the  meaning  of  the  statute  (Code,  \  3583)  speci- 
fying the  grounds  of  challenge  to  jurors  in  criminal  cases. 

2.  Admissibility  of  confessions. — The  constable  who  had  the  custody  of 
the  prisoner,  a  slave,  having  paid  to  him,  "If  you  did  it,  you  had 
better  confess:  it  would  be  best  for  you  to  tell  the  truth  ;  truth  is 
always  the  best  policy  ;  but,  if  you  did  not  kill  him,  we  don't  want 
yoU'to  say  so," — held,  that  there  was  nothing  in  these  facts  to  show 
that  the  prisoner's  confessions,  subsequently  made  to  the  constable 
in  the  same  conversation,  were  elicited  through  the  influence  of 
either  hope  or  fear;  and  that  the  confessions  were  admissible  evi- 

e. 

t ion  <>f  grand  jury  ;  sufficiency  of  certified  transcript  on  change 
rcnue. — Where   the  regular  term    of    the    circuit   court   corn- 
iced on  the  second  Monday  after  the  fourth  Monday  in  October, 
h   was  the  eighth  day  of  November;  and  the  indictment,  as 
ied  into  the  certified  transcript  on  change  of  venue,  purported 
to  have   been  returned  into  court  on  the  ninth  day  of  November ; 
le  the  transcript  stated,  in  its  caption,  that  the  grand  jury  was 
organized  at  a  term  of  the  court  begun  and  held  on  the  second 
Monday  after  the  fourth  Monday  in  November,  which  was  the  sixth 
of  December, — held,  that  the  transcript  did  not  show  that  the 
grand  jury  was  organized  at  the  regular  term  of  the  court;  but,  if 
a  wrong  date  \yas  inserted  in  the  transcript  by  a  clerical  misprision, 
(there  being  a  reversal  of  the  judgment  on  other  grounds.)  the 
take  may  be  corrected  before  another  trial. 
4.  Variance  ra> name  of  deceased.'— Where  the  indictment  alleged  the 
i  •  of  the  deceased  to  be  Louis  Bondet,  or  Boredef,  while  his  real 
nrrae  was  proved  to  be  Louis  Burdet,  and  to  be  sometimes  pro- 


OF  ALABAMA  18 


Aaron  (a  slave)  v.  The  State. 


nounced  as  if   spelt   Bowed et ;    and  the  circuit  court  thereupon 
charged  the  jury,  "  thit  if  his  real  name  was  the  same  in  sound  a>  if 
written  Boudet  or  Boredct,  or  so  nearly  the  same  that  the  diffe] 
would  be  but  slight,  or  scarcely  perceptible,  and  he  would  have 
readily  known  by  his  name  being  pronounced  as  if  written  / 
or  Boredet,  then  the  variance  would  not  avail   the  defendant,' — 
held,  that  the  ruling  of  the  court  was  substantially  correct. 

FroiM  the  Circuit  Court  of  Mobile,  on  change  of  venue 
from  Baldwin. 

Tried  before  the  Hon.  C.  \V.  Rapier. 

The  prisoner  was  indicted,  jointly  with  another  slave, 
in  the  circuit  court  of  Baldwin,  for  the  murder  of  one 
Louis  Boudet,  (or  Boredet,  as  the  court  decided,  on  in- 
spection, it  might  be,)  a  white  man.  The  venue  having 
been  •changed  to  Mobile,  the  prisoner  was  there  tried 
alone,  at  the  December  term,  1860.  During  the  organi- 
zation of  the  jury,  as  is  shown  by  the  bill  of  exceptions, 
A.  R.  Drish,  one  of  the  regular  panel  of  jurors,  being 
examined  touching  his  qualifications  as  a  juror,  "'state  I, 
that  he  was  not  a  freeholder;  but  that  he  rented  a  room 
by  the  year,  aud  occupied  it  as  a  lodging-room  ;  and  that 
he  exercised  the  exclusive  control , of  said  room,  and  had 
occupied  it  thus  for  more  than  a  year."  The  prisoner 
challenged  this  juror,  on  the  ground  that  he  was  neither 
a  freeholder  nor  a  householder ;  the  court  overruled  the 
objection,  and  the  prisoner  excepted.  An  exception  was 
also  reserved  to  the  ruling  of  the  court  in  admitting  one 
Hannibal  Choate  as  a  competent  juror,  on  a  similar  state 
of  facts;  and  several  -other  exceptions,  which  require  no 
particular  notice,  were  reserved  during  the  organization 
of  the  jury. 

When  the  State  offered  to  read  to  the  jury  the  copy  of 
the  indictment  contained  in  the  certified  transcript,  "the 
prisoner  objected  to  being  put  upon  his  trial  on  said 
copy-indictment,  and  objected  to  the  same  being  read  to 
the  jury  as  a  sufficient  indictment,  and  objected  to  the 
introduction  of  said  transcript;  because  said  transcript 
showed   that  the  court  commenced  its  session  at  a  time 


14  SUPREME  COURT 


Aaron   (a  slave)  v.  The  State. 


npt  appointed  for  a  regular  term;  and  because  it  con- 
tained no  caption  showing  the  organization  of  a  grand 
jury  at  the  regular  term  of  said  court;  and  because  it  did 
not  appear  that  said  indictment  was  found  at  a  regular 
term  of  6aid  court;  and  because  it  appeared  that  said 
indictment  was  filed  in  court  before  the  organization  of 
the  grand  jury."  The  transcript  states,  in  its'  caption, 
that  the  proceedings  were  had  "at  a  term  of  the  circuit 
court,  begun  and  held  in  and  for  the  county  of  Baldwin, 
at  Hie  court-house  thereof,  on  the  second  Monday  after 
the  [fourth  Monday  of  November,  1858;"  and  then  sets 
out  the  organization  of  the  grand  jury.  The  next  minute- 
entry,  which  is  headed.  "Tuesday,  November  9,  1858," 
recites  that  the  grand  jury  return  into  court,  and  file 
sundry  bills  ot  indictment;  and  Ihen  follows  the  indict- 
ment against  the  prisoner,  which  is  entitled  'Fall  term, 
1858j'  and  endorsed  by  the  clerk,  'Filed  in  open  court, 
9th  November,  1858, ";  The  court  overruled  the  several 
objections  to  the  indictment  and  transcript,  and  the  pris- 
oner excepted. 

The  deceased  was  killed  on  the  20th  or  21st  April, 
1858.  The  prisoner  was  at  that  time  a  runaway,  and  did 
not  return  home  for  several  days  afterwards.  When  he 
returned,  (suspicion  having  been  aroused  in  the  meantime 
against  him  and  another  slave,  Ranty  by  name,)  he  was 
seized  and  tied  by  his  overseer,  and  delivered  up  to  a 
magistrate,  by  whom  he  was  examined  touching  the 
murder  of  the  deceased  ;  but  on  that  examination  he  de- 
nied all  participation  in  the  killing.  Tie  was  left,  during 
the  night,  in  the  custody  of  one  Nelson,  who  was  acting 
,.s  constable,  and  who  kept  him  bound  with  handcuffs 
and  a  chain.  On  the  next  morning,  while  Nelson,  ac- 
companied by  several  other  persons,  was  carrying  him  to 
the  place  appointed  by  the  magistrate  for  the  further  in- 
vestigation, and  while  he  and  Nelson  were  twenty  or 
thirty  yards  in  advance  of  the  rest  of  the  party,  he  made 
a  confession  of  his  guilt;  and  immediately  afterwards, 
while  the  whole  party  were  going  down  the  river  in  a 
boat,  repeated  the  confession  in  the  presence  of  the  other 


OF  ALABAMA.  15 


Aaron  (a  slave)  v.  The 


ms.  One  of  the  handcuffs  had  swollen  his  wrist,  and 
Nelson  took  it  oft;  but  it  does  not  appear  whether  this 
was  before  or  after  the  first  confession.  The  State  first 
introduced  one  Eslava  aa  a  witness,  who  was  one  of  the 
party  with  the  constable  on  that  occasion,  and  who  testified 
that,  "  on  the  morning  of  the  next  day  after  Aaron's  first 
examination,  while  going  down  the  river  in  a  boat,  with 
him  and  several  other  persons,  Aaron  made  a  statement 
to  him,  about  the  killing  of  the  deceased,  implicating 
himself;  and  that  this  statement  was  made  in  reply  to  a 
question  by  him,  'how  he  came  to  tell  about  the  matter,' 
alluding  to  his  confession,  just  before,  to  Nelson.  The 
solicitor  asked  the  witness,  whether  he  held  out  any  in- 
ducement to  the  prisoner  to  confess,  or  used  any  threats, 
force,  or  undue  influence ;  and  the  witness  said,  that  he 
had  not.  The  solicitor  then  asked  the  witness  to  state 
what  the  prisoner  said  to  him  ;  but  the  prisoner,  by  his 
counsel,  objected  to  this,  because  it  did  not  appear  that, 
at  the  time  this  confession  was  made,  the  influence  of  the 
oath  and  charge  given  to  him  had  been  removed.  The 
court  overruled  the  objection,  and  the  prisoner  excepted." 
The  prisoner  then  introduced  Nelson,  as  a  witness,  who 
testified  to  the  court,  in  reference  to  the  confession  made 
to  him,  as  follows:  "While  he  and  Aaron  were  about 
twenty-five  or  thirty  yards  in  advance  of  the  others,  and 
were  in  conversation  about  the  matter  of  the  homicide, 
witness  said  to  Aaron  in  substance,  as  well  as  he  could 
recollect,  'If  you  did  It,' you  had  better  confess:  it  is 
best  to  tell  the  truth  ;  but,  if  you  did  not  do  it,  we  don't 
want  you  to  say  so.'  On  re-examination  touching  this 
conversation,  the  witness  stated  that  he  said  to  the  pris- 
oner, 'If  you  killed  him,  you  had  better  confess;  it  would 
be  best  for  you  to  tell  the  truth  :  truth  is  always  the  best 
policy.  But,  if  you  did  not  kill  him,  we  don't  want  you 
to  .say  so;  if  you  did,  it  is  best  for  you  to  confess  and 
acknowledge  it.'  When  witness  made  these  statements 
to  Aaron  in  said  conversation,  Aaron  walked  on  a  little 
way,  saying  nothing,  and  apparently  reflecting,  and  then 
made  the  confession.     No  one  else  was  then  present,  but 


16  SUPREME  COURT 


Aaron  (a  slave)  v.  The  State. 


the  others  soon  came  up."  The  prisoner  then  introduced 
as  witnesses,  before  the  court,  the  agent  of  his  owner,  who 
had  the  control  and  management  of  him,  and  his  over- 
seer ;  who  testified  to  the  facts  above  stated,  in  reference 
to  his  being  a  runaway  at  the  time  the  homicide  was 
committed,  his  return  home,  his  arrest  by  the  overseer, 
and  his  delivery  to  the  magistrate.  On  these  facts,  the 
court  admitted  as  evidence  to  the  jury,  against  the  pris- 
oner's objections,  the  confession  to  Eslava,  and  the  prior 
confession  to  Nelson  :  to  which  decisions  the  prisoner  re- 
served exceptions.  The  State  then  adduced  evidence 
corroborating  the  confessions  in  seVeral  particulars. 

In  reference  to  the  name  of  the  deceased,  the  testimony 
was  as  follows :  Eslava  testified,  "that  the  deceased  was 
a  Swiss,  and  was  named  Louis  Burdet ;  that  he  spoke 
French,  and  pronounced  his  name  according  to  the 
French  pronunciation  ;  [that  he  (witness)  had  seen  the 
deceased  write  his  name,  and  pronounced  it  as  the  de- 
ceased did."  Joseph  Nelson  testified,  "thathe  knew  the 
deceased,  who  was  generall}'  called  Louis  Burdet,  pro- 
nouncing the  surname  as  in  Engjish."  Mr.  "Weeks  tes- 
tified, "that  he  knew  the  deceased,  and  that  his  name 
was  Louis  Burdet,  giving  the  French  pronunciation." 
Joseph  Hall  testified,  "that  he  knew  the  deceased,  who 
was  generally  called  by  his  christian  name,  Louis  ;  that 
he  had  several  times  heard  his  name  called  oui  at  the 
polls  where  he  voted,  and  that  it  was  then  pronounced, 
to  the  best  of  his  recollection,  as  if  written  Bouredet  ac- 
cording to  English  orthography ;  that  he  did  not  know 
what  was  the  correct  pronunciation  of  his  name,  because 
he  was  generally  called  '  Old  Louis.'  "  The  court  deci- 
ded, on  inspection,  aided  by  the  testimony  of  several 
experts,  that  the  name,  as  written  in  the  indictment, 
might  be  either  Boudet,  or  Boredei,  and  might  be  pro- 
nounced as  if  spelt  Boodet,  or  Bowdtt  ;  and  instructed  the 
jury,  "that  if  the  real  name  of  the  deceased  was  the 
same  in  sound  as  if  written  Boudet  or  Boredet,  or  sonearly 
the  same  that  the  difference  would  be  but  slight,  or 
scarcely  perceptible,  and    he  would  have  been    readily 


OF  ALABAMA.  .   17 

Aaron  (a  slave)  v.  The  State. 

known  by  his  name  being  pronounced  as  if  written  Bou- 
det  or  Boredtt, — then  the  variance  would  not  avail  the  de- 
fendant for  hi3  acquittal ;  "  to  which  charge  the  prisoner 
excepted. 

James  Bond,  and  L.  S.  Lude,  for  the  prisoner. — 1.  Drish 
and  Choate  were  not  competent  jurors,  being  neither 
freeholders  nor  householders.— Code,  §§  3436,  3583.  The 
object  of  the  statute,  in  requiring  householders  and  free- 
holders as  jurors,  is  recited  to  be  the  securing  of  "  honest}', 
impartiality,  and  intelligence;"  and  its  purpose  will 
inevitably  fail,  at  least  in  the  cities  and  large  towns,  if 
the  mere  renting  of  a  room  be  held  sufficient  to  constitute 
a  householder.  Where  rooms  are  rented  by  gamblers 
and  other  disreputable  characters,  such  renting  gives  not 
the  slightest  assurance  ot  honesty  or  intelligence.  To 
eftejjfcuate  the  object  of  the  statute,  the  term  householder 
'should  be  construed  to  mean,  one  who  holds,  or  has  pos- 
session of  a  house — who  has  some  stake  in  the  commu- 
nity, and  whose  reputation  mayjbe  known.  If  the  prisoner 
was  tried  by  jurors  who  had  not  the  requisite  qualifica- 
tions, the  jud^nent  will  be  reversed. — 1  Porter,  298; 
2  Mason,  91 ;  1  Johns.  315;  8  Johns.  347;  8  Ala.  302  ; 
4  Barn.  &  Aid.  472  ;   3  Iredell,  532. 

2.  The  certified  transcript,  on  which  the  prisoner  was 
tried,  was  fatally  defective.  The  regular  fall  term,  1858, 
of  the  circuit  court  ol  Baldwin,  commenced  on  the  8th 
day  of  November,  as  this  court  must  judicially  know; 
yet  the  transcript  states,  that  the  grand  jury  was  organ- 
ized on  the  2d  Monday  after  4th  Monday  in  November. 
If  this  statement  is  true,  the  indictment  was  not  found 
by  that  grand  jury,  or  the  grand  jury  itself  was  organ- 
ized at  an  unauthorized  time. 

3.  The  prisoner's  confessions  ought  not  to  have  been 
admitted  as  evidence  against  him.  The  circumstances 
under  which  those  confessions  were  made,  as  detailed  in 
the  bill  of  exceptions,  show  that  they  were  extorted  from 
him  by  the  two-fold  influence  of  hope  and  fear.  The 
p  risoner  is  a  slave,  ignorant  of  the  law,  ^ind  accustomed 


SUPREME  COURT 


Aaron  (a  slave)  v.  The  State. 


to  implicit  obedience.  The  confessions  were  made  to  a 
white  man,  an  officer  of  the  law,  in  whose  custody  he  was, 
and  in  response  to  a  question  by  that  officer;  and  at  a 
time,  too,  when  he  was  bound  in  irons,  and  in  the  midst 
of  an  excited  party  of  white  men  who  were  investigating 
the  facts  of  the  homicide.  If  he  had  failed  to  answer 
the  question,  his  silence  would  have  been  considered  dis- 
respectful ;  and  if  he  had  given  the  same  answer  as  on 
his  former  examination,  it  would  not  have  been  accepted 
as  satisfactory.  The  officer  did  not  caution  him  that 
what  lie  said  would  be  used  as  evidence  against  him,  nor 
can  he  be  presumed  to  know  that  fact.  The  remarks  of 
the  officer,  in  reply  to  which  the  first  confession  was 
made,  could  only  be  construed  by  him  as  a  threat,  if  he 
did  not  confess,  or  a  promise  that  he  could  thereby  better 
his  condition.  His  former  denial  was  not  satisfactory  to 
the  party,  and  he  mast  have  seen  that  nothing  short  of  a 
confession  of  his  guilt  would  satisfy  them.  If  these  facts 
are  not  sufficient  to  show,  affirmatively,  that  the  confes- 
sions were  not  voluntary,  they  at  least  raise  grave  doubts 
of  their  entire  freedom. — State  v.  Long,  1  Hayvv.  455  ; 
Wharton's  Amer.  Crim.  Law,  252  ;  1  G-rdenl.fEv.  §  225, 
and  notes;  32  Ala.  566;  26  Ala.  107;  25  Ala.  1.  An 
additional  ground  of  objection,  which  is,  of  itself,  suffi- 
cient to  exclude  the  confessions,  is  the  fact  that  the  pris. 
oner  had  been  previously  sworn  and  examined  during  the 
investigation,  and  was  then  charged  by  the  magistrate, 'as. 
the  statute  directs,  (Code,  §§  8318,  3315,)  concerning  the 
consequences  and  punishment  of  false  swearing;  and  it 
was  not  shown  that,  at  the  time  the  confessions  were 
made,  the  influence  and  effect  of  this  oath  and  charge 
had  been  removed  from  his  mind:  on  the  contrary,  the 
confession  itself  shows  that  .they  still  dwelt  upon  his 
mind.  Confessions  have  been  repeatedly  excluded,  be- 
cause the  prisoner  had  been  examined  upon  oath. — 
1  Greenl.  Ev.  §  225;  Bull.  N.  P.  242;  4  Hawk.  PC.  ch. 
46,  §  37  ;  4  C.  &,  P.  564  ;  6  ib.  161, 179;  1  Moody  &  Rob.  297; 
1  Moody,  203  ;  1  Parker's  Crim.  R.  406-23;  4  Dallas,  116; 
1  Phil.  Ev.  113,  note  207,  2d  vol.  ;  Roscoe,  48-50. 


OF  ALABAMA.  19 


Aaron  (a  slave)  v.  The  State. 


4.  The  charge  of  the  court  to  the  jury,  on  the  question 
of  variance,  was  erroneous.  The  rule  of  law  as  to  idem 
sonans  cannot  apply  to  names  so  dissimilar  in  sound  as 
JBurdet  and  Boudet,  or  Borcdct. — Rex  v.  Tannet,  Rubs.  & 
R.  351  £10  East,  83;  5  Taunton,  14  ;  Roscoe,  106.  Idem 
sorums  is  a  question  of  law,  and  the  court  erred  in  i 
ring  its  decision  to  the  jury. 

M.  A.  Baldwin,  Attorney-General,  contva. — 1,  Drish 
and  Choate  were  householders,  within  the  spirit  and  in- 
tention of  the  statute. 

2.  The  objection  taken  to  the  certified  transcript,  is 
but  a  clerical  misprision,  which  was  amendable  by  the 
other  parts  of  the  record. 

3.  The  prisoner's  confessions  appear  to  have  been  made 
voluntarily,  and  were  abundantly  corroborated.  That 
they  were  admissible,  see  Hawkins  v.  State,  7  Missouri, 
190;  Roscoe's  Crim.  Ev.  42. 

4.  There  wa3  no  variance  in  the  name  of  the  deceased. 
17  Ala.  179. 

The  opinion  of  the  court  was  delivered,  Feb.  13,  '61,  by 
STONE,  J. — The  jurors  Drish  and  Choate  were  mere 
tenants  and  occupants,  by  yearly  letting,  of  rooms  used 
as  sleeping  apartments.  The  section  of  the  Code,  which 
defines  the  qualifications  of  jurors,  declares  that  it  is  a 
good  ground  of  challenge  for  either  party,  "that  the  juror 
has  not  been  a  resident  householder  or  freeholder  of  the 
county,  for  one  year  preceding  the  time  he  is  sworn." — 
§3583.  The  term  "householder"  is  defined  by  Mr. 
Webster  to  mean,  "the  master  or  chief  of  a  family;  one 
who  keeps  house  with  his  family."  "Household:  those 
who  dwell  under  the  same  roof,  and  compose  a  family." 
In  the  case  of  Brown  v.  Witt,  (19  Wend.  475,)  Bronson, 
J.,  said,  "The  word  householder,  in  this  statute,  means  the 
bead,  master,  or  person  who  has  the  charge  of,  and  pro- 
vides for  a  family."  "A  person  having  and  providing 
for  a  household,  is  a  householder." — Griffin  v.  Sutherland, 
14  Barb.  Sup.  Ct.  156.     See,  also,  Rex  v.  Inhabitants  of 


20  SUPREME  COURT 

Aaron  (a  slave)  v.  The  State. 

Rufford,  8  Mod.  40;  Slade's  bail,  1  Chitty,  502  ;  Rex  v. 
Poynder,  1  B.  &  Cress.  178;  3  PetersdorfTs  Abr.  103. 
Householder,  in  our  statute,  means  something  more  than 
the  mere  occupant  of  a  room  or  house.  It  implies  in  its 
terms  the  idea  of  a  domestic,  establishment — of  the  man- 
agement of  a  household. — Sallee  v.  "Waters,  17  Ala.  482  ; 
Boykin  v.  Edwards,  21  Ala.  261:  2  Mart.  La.  313; 
Burrill's  Law  Dictionary,  "  Household."  Under  this 
rule,  Messrs.  Drish  and  Choate  were  not  competent 
jurors;  and  for  the  error  in  putting  them  upon  the  pris- 
oner, this  case  must  be  reversed. 

The  questions  as  to  the  other  two  jurors  will  probably 
not  arise  again  in  their  present  form. 

[2.]  Much  has  been  written  on  the  question,  what  de- 
gree of  influence  will  exclude  the  evidence  of  confessions 
in  criminal  cases?  The  authorities  agree,  that,  before 
any  confession  can  be  received  in  evidence  in  a  criminal 
case,  it  must  be  shown  that  it  was  voluntary.  "  A  free 
and  voluntary  confession  is  deserving  of  the  highest  credit, 
because  it  is  presumed  to  flow'  from  the  strongest  sense  of 
guilt,  and  therefore  it  is  admitted  as  proof  of  the  crime 
to  which  it  refers ;  but  a  confession  forced  from  the  mind, 
by  the  flattery  of  hope,  or  by  the  torture  of  fear,  comes 
fn  so  questionable  a  shape,  when  it  is  to  be  considered  as 
the  evidence  of  guilt,  that  no  credit  ought  to  be  given  to 
it;  and  therefore  it  is  rejected." — 1  Green],  Ev.  §219;  Mose 
v.  The  State,  33  Ala.  211 ;  Roscoe's  Cr.  Ev.  39  ;  Wyatt  v. 
The  State,  26  Ala.  9 ;  Brister  v.  The  State,  26  Ala.  107, 
L28  ;  Seaborn  v.  The  State,  20  Ala.  15  ;  Reg.  v.  Waring- 
ham,  2  Lead.  Cr.  Cas.  167 ;  2  Russ.  on  Crimes,  827.  See, 
also,  2  Lead.  Cr.  Cases,  190,  191,  and  198,  et.  seq, 

In  some  cases,  we  think  the  rule  which  excludes  con- 
fessions, as  being  procured  by  hopes  held  out,  or  fears 
excited,  has  been  carried  to  the  verge  of  propriety,  if  not 
beyond  it.  In  Reg.  v.  Drew,  (8  C.  &  P.,)  the  language 
used  was,  "Do  not  say  anything  to  prejudice  yourself,  as 
what  you  say  I  will  take  down,  and  it  will  be  used  for  or 
against  }7ou  at  the  trial."  We  confess  we  cannot  perceive 
on  what  principle  this  confession  was  excluded.    So,  in  the 


OF  ALABAMA. __21 

Aaron  (a  slave)  v.  The  State. 

case  of  Reg.  v.  Morton,  (2  Mood.  &  Rob.  511,)  where  the 
language  was,  "  Whatyou  are  charged  with  is  a  very  heavy 
often se,  and  you  must  be  very  careful  in  making  any 
statement  to  me  or  any  body  else,  that  may  tend  to 
injure  you;  but  any  thing  you  can  say  in  your  defense, 
we  shall  be  ready  to  hear,  or  send  to  assist  you,"  In  each 
of  these  cases,  'he  decision  was  pronounced  by  Coleridge, 
J.  In  the  ease  of  Rex  v.  Upchurch,  (1  Moody,  465,)  n 
hope  was  held  out  to  the  prisoner,  that  a  confession  would 
perhaps  save  her  neck ;  and  we  think  the  ten  judges — 
Lord  Denman,  Ch.  J.  Tindal,  Loid  Abinger,  Ch.  B.  Park, 
and  others— rightly  ruled  her  confessions  inadmissible. 

Although  we  fully  approve  the  sentiment  expressed  by 
this  court  in  the  case  of  Wyatt,  supra,  that,  "  in  consid- 
ering questions  of  the  kind  before  us,  we  must  bear  in 
mind  "  the  dependent  relation  of  the  slave — the  absolute 
dominion  under  which  he  lives,"  (see,  also,  Clarissa's 
case,  11  Ala.  60,) — yet,  we  agree  with  Parke,  B.,  "that 
cases  on  this  subject  have  gone  quite  far  enough,  and 
ought  not  to  be  extended." — Reg.  v.  Moore,  12  Eng.  Law 
and  Eq.  586.  In  Seabom's  case,  the  confession  was  made 
to  the  committing  magistrate,  after  he  had  told  the  pris- 
oner, (a  slave  and  in  custody,)  that  it  was  a  bad  business, 
or  bad  situation  he  was  in. — 20  Ala.  15.  The  confession 
was  held  admissible.  See,  also,  Reg.  v.  Baldry,  2  Lead. 
Cr.  Cases,  164;  Hawkins  v.  The  State,  7  Missouri,  190. 

The  substance  of  what  the  .bailiff  said  to  the  prisoner  in 
this  case  was,  that  truth  was  the  best  policy:  that  if  he 
did  the  act,  it  was  best  to  confess  it;  but,  if  he  did  not  do 
the  act,  then  there  was  no  wish  he  should  say  so.  Now, 
if  there  be  in  this  language  any  inducement  offered  to  the 
prisoner  to  obtain  a  confession,  that  inducement  was 
placed  on  the  express  condition  that  he,  the  prisoner, 
was  guilty.  Hence,  to  suppose  that  the  prisoner  was  in- 
fluenced by  the  declaration  to  make  the  confession,  is  to 
concede  his  guilt ;  for,  in  '  no  other  contingency,  was  he 
advised  to  confess.  The  prisoner,  if  innocent,  was  warned 
not  to  say  he  had  done  the  deed,  in  language  equally  as 
strong  as  that  which   sought   his  confession   if  guilty. 


22 SUPREME  COURT        

Aaron  (a  slave)  v.  The  State. 

Truth  was  asked  for;  and  'we  canuot  perceive  that  any 
hope  or  fear  was  offered  to  the  prisoner,  to  induce  him  to 
make  a  false  confession  of  guilt.  The  circuit  court  did 
not  err  in  receiving  evidence  of  the  confessions. 

[3.]  The  transcript  from  the  circuit  court  of  Baldwin 
county  presents  the  following  state  of  facts :  The  regular 
term  of  the  circuit  court  of  that  county  sat  on  the  second 
Monday  after  the  fourth  Monday  in  October,  and  com- 
menced its  session  on  the  8th  day  of  .November,  1858 
The  indictment,  on  which  the  prisoner  was  tried,  appears 
to  have  been  returned  into  court  on  the  9th  day  of 
November,  1858.  The  transcript  from  'Baldwin  states, 
that  a  grand  jury,  composed  of  certain  named  persons, 
was  organized  in  a  Baldwin  circuit  court,  on  the  2d 
Monday  after  the  4th  Monday  in  November,  1858,  which 
was  the  sixth  day  of  December.  The  transcript  from 
Baldwin  circuit  court  fails  to  show  the  organization 
of  the  grand  jury  at  the  fall  term,  1858,  unless  there  is  a 
mistake  in  the  date  found  in  the  record.  We  suppose 
the  date  is  incorrectly  stated  ;  but,  as  the  record  before 
us  fails  to  show  the  organization  of  the  grand  jury  by 
whom  the  bill  was  found,  and  as  we  suppose  this  to  be  a 
clerical  error,  which  can  be  corrected,  we  will  do  no  more 
than  call  the  attention  of  the' circuit  court  and  the  parties 
to  it,  that  before  another  trial  the  transcript  may  be  put 
in  proper  form. 

[4.]  The  ruling  of  the  court  in  reference  to  the  name 
of  the  deceased  is  substantially  correct.  We  understand 
the  circuit  court  to  have  said,  in  substance,  that  if  the 
variance  in  the  name  be  so  slight  as  scarcely  to  be  per- 
ceptible, and  the  deceased  would  have  been  readily  known 
by  the  name  thus  called,  then  such  variance  was  imma- 
terial. In  the  case  of  Ahitbol  v.  Beniditto,  the  court 
ruled,  that  Benedetto  was  idem  sonans  with  Beniditto. — 
2  Taunton,  401.  See,  also,  Ward  v.  The  State,  28  Ala. 
60 ;  Doe.  tx  dem.  v.  Miller,  1  B  &  Aid.  699. 

Judgment  of  the  circuit  court  reversed,  and  cause  re- 
manded. Let  the  prisoner  remain  in  custody,  until  dis- 
charged by  due  course  of  law. 


OF  ALABAMA.  23 


Scott  v.  The  State. 


SCOTT  vs.  THE  STATE. 

[indictment  against  slave  for  homicide  of  white  person.] 

1.  Sufficiency  of  clerk's  certificate  to  transcript,  on  change  of  venue. — On 
change  of  venAe  in  a  criminal  case,  if  the  clerk's  certificate,  ap 
ponded  to  the  transcript,  states  that  it  "  contains  a  true  and  com- 
plete transcript  of  the  caption  of  the  grand  jury,  and  a  copy  of 
the  indictment,  with  the  endorsements  thereon,  together  with  the 
recognizances  of  the  witnesses,  and  all  the  orders  and  judgments 
had  in  the  case,  all  of  which  is  as  full  and  complete  as  the  same 
appears  of  record," — this  is  a  substantial  compliance  with  the  re- 
quirements of  the  statute,  (Code,  \  3f>13.) 

i'ice  of  copy  of  indictment  on  prisoner. — If  a  copy  of  the  indict- 
ment, as  originally  found  by  the  grand  jury,  is  served  upon  the 
prisoner  while  in  confinement,  (Code,  §'3570,)  the  validity  of  the 
service  is  not  affected  by  the  fact  that  a  nolle-proscqm  bad  been 
entered  as  to  one  of  the  counts. 

3.  Jpharge  to  jury  as  to  construction  and  eject  of  other  charges. — Where 
the  court,  after  having  charged  the  jury  orally,  gave  several  charges 
in  writing  at  the  request  of  the  defendant,  and  then  added,  "  that 
the  jury  would  receive  the  written  charges,  in  connection  with  the 
charges  and  law  as  given  and  expounded  orally  from  the  bench, 
as  the  law  of  the  case," — held,  that  this  was  not  erroneous. 

■i.  Homicide  of  white  person  by  slave  ;  charge  to  jury,  as  to  constituents  oj 
'offense. — On  the  trial  of  a  slave,  under  an  indictment  for  the  mur- 
der or  voluntary  manslaughter  of  a  white  person,  a  charge  to  the 
jury,  asserting  that,  "  if  they  believed  the  defendant  struck  tho 
deceased  with  no  expectation  or  intention  to  kill  him,  and  the 
stroke  did  kill  him,  the  death  was  accidental,  and  the  defendant 
should  be  acquitted," — is  erroneous,  since  it  assumes  that  the  de- 
fendant wonld  be  entitled  to  an  acquittal,  although  the  blow  was 
given  with  the  intention  to  do  great  bodily  harm. 

5.  Sufficiency  of  verdict. — Under  an  indictment  against  a  slave,  charg- 
ing him,  in  separate  counts,  with  the  murder  and  voluntary  man- 
slaughter of  a  white  person,  a  general  verdict  of  guilty  is  sufficient 
to  authorize  a  judgment  and  sentei  ce  of  deuth. 

From  the  Circuit  Court  of  Dallas,  on  change  of  venue 
from  Wilcox. 

Tried  before  the  lion.  Portkr  King. 

The  indictment  in  this  case  was  found   by  the  grand 


24 SUPREME  COURT 

Scott  v.  The  State. 

jury  of  Wilcox  county,  and  originally  contained  three 
counts:  the  first  charging  the  prisoner,  who  w%s  a  slave, 
with  the  murder  of  James  Wilkinson,  a  white  person,  by 
striking  him  with  a  stick  or  piece  of  wood  ;  the  second 
charging  that  the  killing  was  done  "  unlawfully,  but 
without  malice  " ;  and  the  third,  that  it  was  done  "un- 
lawfully, but  without  malice,  or  the  intention  to  kill."  A 
nolle^rosequi  was  entered  as  to  the  third  count,  and  the 
venue  was  afterwards  changed,  on  the  application  of  the 
prisoner,  to  Dallas  county.  On  the  trial,  as  the  bill  of 
exceptions  states,  "the  prisoner  objected  to  being  tried 
on  the  transcript  of  the  record  from  the  circuit  court  of 
Wilcox,  because  of  the  insufficiency  of  the  clerk's  certifi- 
cate to  the  said  transcript;  which  objection  the  court 
overruled,  and  the  prisoner  excepted."  The  certificate  is 
in  the  following  words  : 

"State  of  Alabama,  "»  I,  C.  C.  Sellers,  clerk  of  the 
Wilcox  county.  (circuit  court  of  Wilcox  county, 
State  of  Alabama,  do  hereby  certify,  that  the  foregoing 
pages,  numbered  from  one  to  four,wcontain  a  true  and 
complete  transcript  of  the  caption  of  the  grand  jury,  and 
a  copy  of  the  indictment,  with  the  endorsements  thereon,  m 
together  with  the  recognizance  of  the  witnesses,  and  all  tke 
orders  and  judgments  had  in  the  case  of  the  State  against 
Scott,  a  slave,  together  with  a  bill  of  the  costs;  all  of 
which  is  as  full  and  complete  as  the  same  appears  of 
record  or  on  file  in  my  office  Given  under  my  hand 
and  seal  of  office,"  &c. 

The  prisoner  then  objected  to  being  tried,  "  because 
the  paper  which  had  been  served  upon  him,  while  he  was 
confined  in  jail,  as  a  copy  of  the  indictment,  was  not  a 
correct  copy  of  the  same  ;  and  produced  to  the  court  the 
paper  which  had  been  so  served  on  him,"  which  was  a 
correct  copy  of  the  original  indictment,  including  the 
count  as  to  which  a  nolle-prosequi  had  been  entered  before 
the  change  of  venue.  The  court  overruled  the  objection, 
and  the  prisoner  excepted. 

The  circumstances  connected  with  tlie  killing,  as  proved 


OF  ALABAMA.  25 


Scott  v.  The  Stare. 


on  the  trial,  were  substantially  these:  On  the  eight  of 
the  19th  January,  1860,  the  prisoner  was  caught  by  a  pa- 
trolling party,  of  whom  the  deceased  was  one,  in  the 
town  of  Camden,  about  a  half-mile  from  his  master's 
house,  without  a  pass;  and  the  deceased,  under  the  direc- 
tion of  the  captain  of  the  patrol,  inflicted  on  him  a  light 
whipping.  On  the  next  morning,  while  the  deceased,  in 
company  with  two  other  white  persons,  was  going 
through  the  suburbs  of  the  town,  he  passed  the  prisoner, 
who  immediately  accosted  him  in  a  rude  and  insolent 
manner,  and  followed  the  party  into  the  town,  talking  in 
a  loud  and  insolent  tone  to  the  deceased.  "  The  dec 
told  him  to  go  away  and  let  him  alone,  and  threw  a  chip 
at  him,  but  did  not  hit  him.  The  defendant  continued 
to  talk  angrily  to  the  deceased,  saying,  '  I  don't  see  what 
business  school-boys  have  to  patrol,  any  Way  ;'  and  the 
deceased  threw  at  him  a  piece  of  a  wagon-fell 
three  inches  long,  and  then  a  piece  of  a  buggy-shaft,  with 
a  [part]  of  the  cross-bar  attached,  but  did  him. 

One  Ratcliife,  who  was  at  work  in  his  carriage-shop  a3 
they  passed,  and  who  was  attracted  to  the  door  of  his 
shop  by  the  loud  and  angry  talking,  threw  or  1. 
the  deceased  a  buggy-whip,  of  medium  size,  and  told  him 
to  take  it  and  whip  the  defendant.  The  defendant  seized 
upon  the  piece  of  buggy-shaft  which  the  deceased  had 
thrown  at  him,  and  he  and  the  deceased  mutually  started 
towards  each  other,  (being  then  some  twelve  or  fifteen 
steps  apart,)  and  met  about  half-way;  an  &  the  deceased 
then  struck  the  defendant  around  the  body  with  the  whip, 
and  the  defendant  struck  him  on  the  left  forehead  with 
the  buggy-shaft."  From  the  effects  of  this  blow  the  de- 
ceased died,  on  the  second  day  afterwards. 

"After  the  court  had  charged  the  jury  orally,  the  de- 
fendant asked  the  court  to  give  six  charges  in  writing, 
which  charges  the  court  also  gave,  and  then  stated  to  the 
jury,  that  they  would  receive  the  written  charges,  in  con- 
nection with  the  charges  and  law  as  given  aud  expounded 
orally  from  the  bench,  as  the  law  of  the  case ;  to  which 
fendant  sold  liquors  at  his  bar,  had  a  regular  license  from 


26  SUPREME  COURT     

Scott  v.  The  State. 

statement,  so  made  by  the  court,  the  defendant  ex- 
cepted." 

"  The  defendant  asked  the  court,  in  writing,  to  charge 
the  jury,  'that  if  they  believed  the  defendant  struck  the 
deceased  with  no  expectation  or  intention  to  kill  him,  and 
the  stroke  did  kill  him,  the  death  was  accidental,  and  the 
defendant  should  be  acquitted  ;  ■  which  charge  the  court 
refused  to  give,  and  the  defendant  excepted." 

The  jury  returned  a  verdict  of  "guilty  of  murder,  in 
manner  and  form  as  charged  in  the  indictment;"  and  the 
court  thereupon  pronounced  sentence  of  death  upon  the 
prisoner. 

George  W.  Gatle,  for  the  prisoner. — 1.  The  certificate 
of  the  clerk,  appended  to  the  transcript,  does  not  state 
that  it  contains  "the  order  for  the  removal  of  the  trial," 
nor  that  it  contains  "all  the  entries  relating"  to  the  in- 
dictment.—Code,  §  3613 ;  Brister's  case,  26  Ala.  126. 

2.  The  paper  served  on  the  prisoner  was  not  a  copy  of 
the  indictment  on  which  he  was  to  be  tried,  since  it  con- 
tained the  count  as  to  which  a  nolle-prosequi  had  been 
entered.  The  unauthorized  addition  of  a  count  makes  as 
material  a  difference  us  would  the  omission  of  a  count. 
In  the  one  case,  a  conviction  might  be  had  upon  a  count 
which  the  prisoner  had  never  seen  ;  and  in  the  other, 
upon  a  count  which  was  void.  If  the  paper  served  on 
the  prisoner  be  held  a  copy  of  the  indictment  on  which 
he  was  tried,  then  it  must  follow  that  he  was  tried,  and 
probably  convicted,  on  the  third  count ;  indeed,  there  is 
nothing  in  the  record  to  repel  this  conclusion. 

3.  The  court  erred  in  the  statement  voluntarily  made 
to  the  jury  after  giving  the  charges  asked  by  the  prisoner. 
If  the  charges  asked  were  correct,  it  was  the  duty  of  the 
court  to  give  them  in  the  language  in  which  they  were 
asked. — Code,  §  2355.  If  they  were  incorrect,  or  in  con- 
flict with  the  oral  charge,  they  ought  not  to  have  been 
given.  The  statement  of  the  court  could  only  be  under- 
stood by  the  jury  as  an  intimation  that  they  must  be 
governed   by  the  oral  charge,  and  that  the  other  charges 


OF  ALABAMA. 


Scott  v.  The  State. 


were  given  merely  to  save  an  exceptiou. — Spivey  v.  The 
State,  26  Ala.  90. 

4.  The  charge  asked  and  refuted,  ought  to  have  been 
given.  It  was  obviously  intended  to  withdraw  from  the 
jury  the  consideration  of  the  third  count.  Moreover,  it 
asserts  a  correct  legal  proposition.  No  one  but  the  mas- 
ter has  a  right  to  punish  or  strike  a  slave.  Words  do  not 
justify  an  assault.  The  deceased  unlawfully  assaulted  the 
prisoner,  and  the  latter  had  the  right  to  resist  and  protect 
himself.  If  the  stroke  was  given  without  any  "expecta- 
tion or  intention  to  kill,"  the  defendant  could  not  be 
convicted  of  murder,  voluntary  manslaughter,  or  invol- 
untary manslaughter  in  the  commissien  of  an  unlawful 
act. 

5.  The  general  verdict  was  erroneous,  and  did  not 
authorize  the  sentence  pronounced.  The  two  counts  in 
the  indictment  charge  different  offenses,  or,  at  least,  one 
offense  with  essential  difference?.  The  offense  is  alleged 
to  have  been  committed  "with  malice,"  and  yet  "with- 
out malice;"  and  the  verdict  finds  this  impossibility  to  be 
true.  The  finding  is  contradictory,  confused,  false,  and 
uncertain. — State  v.  Givens,  5  Ala.  760 ;  State  v.  Coch- 
ran, 30  Ala.  542  ;  6  Ohio,  400 ;  4  Gill,  4'JO. 

M.  A.  Baldwin,  Attorney-General,  contra. — 1.  The 
clerk's  certificate  is  a  substantial  compliance  with  the 
statute. 

2.  The  copy  of  the  indictment,  served  on  the  prisoner, 
was  an  exact  copy  of  the  original ;  and  he  could  not 
possibly  have  been  ifijured  by  the  insertion  of  the  third 
count. 

3.  The  oral  charge  of  the  court,  not  being  set  out  in 
the  bill  of  exceptions,  must  be  presumed  to  have  been 
consistent  with  the  written  charges  which  were  given ; 
and  it  was  the  duty  of  the  jury,  without  any  express 
instruction  from  the  court,  to  consider  tfiem  together  "as 
the  law  of  the  case."  Moreover,  it  is  the  right  and  duty 
of  the  court  to  give  explanatory  charges. — Morris  v. 
State,  25  Ala.  57. 


25  SUPREME  COURT 

Scott  v.  The  State. 


4.  The  charge  refused  wa*  manifestly  erroneous,  in 
assuming  that,  if  the  blow  was  given  with  the  intention 
to  do  great  bodily  harm,  the  defendant  was  entitled  to 
an  acquittal. 

The  opinion  of  the  court  was  delivered,  Feb.  28,  'CI,  by 

R.  W.  WALKER,  J.— The  certificate  of  the  clerk,  at- 
tached to  the  transcript  from  the  circuit  court  of  Wilcox 
county,  was  a  substantial  compliance  with  the  require- 
ments of  section  3613  of  the  Code  ;  and,  as  the  only 
objection  made  to  the  transcript,  was  because  of  the  in- 
sufficiency of  the  certificate,  the  court  did  not  err  in  over- 
ruling it. 

[•2.]  The  copy  of  the  indictment  served  on  the  de- 
fendant, was  a  copy  of  the  indictment  as  found  by  the 
grand  jury;  and  that,  we  think,  was  sufficient,  although 
the  solicitor  had  entered  a  iwlle-prosequi  as  to  one  of  the 
counts. 

[3.]  If.  after  the  court  has  charged  the  jury  orally,  ad- 
ditional charges  are  given  in  writing  at  the  request  of 
either  party,  it  is^certainly  true  that  the  jury  are  to  con- 
sider the  written,  in  connection  with  the  oral  charges,  as 
constituting  the  law  of  the  case.  This  was  all  that  the 
court  said  to  the  jury  in  the  present  case,  and  we  do  not 
see  how  the  remark  could  have  prejudiced  the  defendrtut. 

[4. j  The  last  charge  asked,  was  properly  refused.  If 
the  blow  was  given  with  the  intention  not  to  kill,  but  to 
do  great  bodily  harm,  and  death  ensued,  it  by  no  means 
follows,  that  the  defendant  was  entitled  to  an  acquittal, 
Yet  the  charge  asked  by  the  defendipt,  declares  that,  in 
aae  supposed,  it  would  be  the  'duty  of  the  jury  to 
acquit. 

[5.]  Under  our  code,  murder,  when  committed  by  a 
slave,  and  the  voluntary  manslaughter  of  a  white  person 
-lave,  are  subjected  to  the  same  punishment. — Code, 
§  8312.  The  first  and  second  counts  of  the  indictment  in 
this  case,  allege  the  killing  of  the  same  person,  and  obvi- 
ously refer  to  the  same  act,  charging  it  in  different  ways, 
so  as  to  meet  the  different  aspects  in  which  it  might  be 


■ 
OF  ALABAMA. 


Stein  v.  The  S 


presented  by  the  evidence.     It  is  very  clear  that,  where 
both  counts  of  the  indictment  refer  to  a  single  trai 
and  the  punishment,  prescribed  is  the  same  in  th 
case  as  the  other,  a  general   verdict  of  guilty  is  not  im- 
proper.— 1   Archb.   Crim.  PL    175-0  ;  Hudson  v.  State, 
lBlackf.  319;  U.  States  v.  Pirates,  5  Wheat.  184;   Mays 
v.  State,  30  Ala.  323. 
Judgment  affirmed. 


•STEIN  vs.  THE  STATE. 


:  MENT  AGAINST  LESSEE  OF  CITV   WATEK-WOKKS.] 

1.  When  indictment  lies  for  breach  of  duty  imposed  by  co)Uraei,  a 
sufficiency. — An  indictment  lies  against  the  lessee  of  the  city  water 
works  of  Mobile,  for  a  breach  of  tbe  public  duty  imposed  on  hini 
by  his  contract  with  the  corporate  authorities,  in  failing  to  furnish 
the  city  with  a  supply  of  water  ;  but,  since  his  contract  only  binds 
him  to  supply  water  to  the  city  from  Three-mile  creek,  and  con- 
tains no  stipulation  as  to  the  quality  of  the  water  to  be  supplied, 
an  indictment  which  simply  charges,  in  effect,  that  the  water  sup- 
plied by  him  was-  not  goo  i  and  wholesome,  shows  no  breach  of 
duty  resulting  from  the  contract.  " 

2.  When  indictment  lies  for  nuisance,  and  its  sufficiency. — Selling  and 
furnishing  unwholesome  and  poisonous  water  to  an  entire  commu- 
nity, is  a  nuisance,  for  wiiich  an  indictment  will  lie;  but,  if  the 
indictment  does  not  allege  that  the  defendant,  his  agents  oi 
vants,  poisoned  the  water,  or  imparted  to  it  its  unwholesome 
quality,  it  must  aver  his  knowledge  of  its  unwholesome  or  i 

ous  quality. 

3.  Relevancy  of  evidence  to  prove  nuisance.. — Under  an  indictment  for 
anuisance,  in  selling  and  furnishing  unwholesome  and  poisonous 
water  to  an  entire  community,  the  prosecution  may  adduce  evi- 
dence, showing  the  deleterious  effects  of  the  water  on  particular 
persons,  members  of  the  community,  not  named  in  the  indictment. 

4.  Admissibility  of  slave's  declarations. — The  declarations  of  a  slave, 
complaining  of  sickness,  and  detailing  his  symptoms,  are   comne- 


30^ SUPREME  COURT  

Stein  v.  The  State. 

tent  evidence  on  the  principle  of  res  gestct,  as  well  as  from  the  ne- 
cessity of  the  case,  though  made  to  a  person  who  is  not  a  physician. 

From  the  Circuit  Court  of  Baldwin. 
Tried  before  the  Hon.  0.  W.  Rapiir. 

This  case  originated  in  Mobile  county,  and  was  re- 
moved to  Baldwin  county  on  the  application  of  the  de- 
fendant. The  fifth  count  of  the  indictment,  on  which 
alone  the  trial  was  had,  was  in  these  words  :  "  The  grand 
jury  of  said  county  further  charge,  that,  before  the  find- 
ing of  thi«  indictment,  an  agreement  was  entered  into, 
on  the  26th  December,  1840,  between  the  mayor,  alder- 
men, and  common  council  of  the  city  of  Mobile,  of  the 
first  part,  and  the  said  Albert  Stein,  of  the  second  part  ; 
which  agreement  was  in  tenor  as  follows," — setting  out 
the  agreement,  hereinafter  more  particularly  referred  to, 
by  which  Stein  leased  the  city  water-works  of  Mobile  ; 
"which  agreement  was  duly  executed,  on  the  day  the  same 
bears  date,  by  the  said  party  of  the  first  part  and  the  said 
party  of  the  second  part,  and  was  confirmed  by  an  act  of 
the  legislature  of  the  State  of  Alabama,  approved  January 
7,  1841,  in  tenor  as  follows," — setting  out  the  act,  en- 
titled "An  act  for  the  promotion  of  the  health  and  con- 
venience of  the  cit}'  of  Mobile,  by  the  introduction  of  a 
supply  of  wholesome  water  into  said  city,  to  be  used  for 
domestic  purposes  and  the  extinguishment  of  fires," 
which  may  be  found  in  the  Session  Acts  of  1840-41,  on 
pages  53,  54.  "And  the  grand  jury  further  find,  that 
the  said  Stein,  for  certain  valuable  considerations  ex- 
pressed in  said  agreement,  promised  and  agreed,  among 
other  things,  to  supply  the  said  city  of  Mobile  and  the 
inhabitants  thereof  with  good  and  wholesome  water, 
which  promise  and  agreement  was  confirmed  by  the  said 
act  of  the  legislature,  approved  January  7,  1841,  herein- 
before set  out.  And  the  grand  jury  further  find,  that 
the  said  Stein,  in  pursuance  of  the  said  agreement  and 
said  confirmatory  act,  accepted  the  right  and  franchise 
therein  conveyed  and  granted,  and,  under  said  agreement 
and  act,  has,  for  a  number  of  years,  to-wit,  ever  since  the 


m 


OF  ALABAMA. 


Stein  v.  The  State. 


y*ar  1843,  collected  and  received  water-rates,  or  rents, 
from  the  inhabitants  of  said  city,  amounting  to  a  large 
sum,  to-wit,  the  sum  of  §100,000,  and  does  yet  collect  and 
receive  water-rates  from  the  inhabitants  of  said  city;  and 
that  the  said  Stein,  by  reason  of  said  agreement  and  said 
confirmatory  act,  and  of  his  acceptance  thereof,  as  herein- 
before averred,  became  liable  and  bound,  and  still  is  liable 
and  bound,  to  supply  said  city  and  its  inhabitants  with 
good  and  wholesome  water,  as  hereinbefore  averred. 
And  the  grand  jury  further  find,  that  there  were  and  are, 
in  said  city  of  Mobile,  a  large  number  of  inhabitants,  to- 
wit,  thirty  thousand,  and  a  lar^*  number  of  taverns, 
hotels,  restaurats,  and  place*  of  entertainment  for  the 
public,  where  all  the  citizens  of  said  State  have  been  and 
are  now  accustomed,  and  had  and  have  a  right,  to  stop, 
stay,  and  tarry  ;  to-wit,  five  taverns,  live  hotels,  five  res- 
taurats, aud  five  places  of  entertainment  for  the  public. 
And  the  grand  jury  further  find,  that  the  said  Stein  has 
heretofore  wholly  failed  and  neglected,  and  does  still  fail 
and  neglect,  to  supply  the  said  city  and  its  inhabitants 
with  good  and  wholesome  water;  but,  on  the  contrary, 
that  the  said  Stein  unlawfully  did,  at  divers  times,  from 
the  year  1843  to  the  finding  of  this  indictment,  and  does 
now,  Bell  and  dispose  of,  to  Nelson  Walkley  .and  others, 
inhabitants  of  said  city,  and  to  all  the  citizens  of  said 
State  stopping,  staying,  and  tarrying  at  the  said  taverns, 
hotels,  restaurats,  and  places  of  entertainment  for  the 
public,  unwholesome  and  poisonous  water,  and  did  and 
does  receive  pay  for  the  same;  to  the  great  injury  of  the 
said  Nelson  Walkley  and  his  family,  and  to  the  common 
nuisance  of  the  said  inhabitants  of  Mobile,  and  of  all  the 
citizens  of  the  said  State  stopping,  staying  and  tarrying 
at  the  said  taverns,  hotels,  restaurats,  and  places  of  en- 
tertainment for  the  public  ;  against  the  peace  and  dignity 
of  the  State  of  Alabama." 

The  contract,  above  referred  to,  by  which  Stein  leased 
the  city  water-works  of  Mobile  from  the  corporate  au- 
thorities, contained  the  following  stipulations:  .The 
parties  of  the  first  part  leased  and  granted  to  Stein,  for 


32  SUPREME  COURT 

Stein  v.  The  State. 

— ■ ■ — — ■ — - — — — — — -f — 

twenty  years,    "the  sole  privilege  of  supplying  the  city 

of  Mobile  with  water  from  Three-mile  creek,"  together 
with  all  the  rights,  benefits  and^'advantages,  accruing  to 
them  under  the  several  acts  of  the  legislature  and  ordi- 
nances of  the  city  relative  to  the  city  water-works  ;  and 
covenanted  and  agreed  with  him,  that  he  should  have 
quiet  possession  during  the  period  of  his  lease,  with 
power  to  collect  water-rates,  at  the  prices  named  in  the 
contract,  "  and  power  and  authority  to  conduct  the  water 
from  any  part  of  Three-mile  creek,  so  that  the  same  may 
be  good  and  wholesome  ;  "  and  that  they  would  pay  him, 
at  the  expiration  of  the  lease,  the  value  of  the  works 
which  he  might  erect,  to  be  fixed  by  arbitration.  Stein, 
on  his  part,  covenanted  to  commence  the  erection  of  the 
necessary  works  within  one  month  after  the  ratification  of 
the  contract  by  an  act  of  the  legislature;  to  introduce  the 
water  into  the  city,  within  two  years  from  the  date  of  the 
contract,  "  so  that  the  said  city  and  its  inhabitants  may, 
at  all  times,  be  supplied  with  such  a  quantity  of  water 
as  may  be  produced,  through  the  said  pipes  as  far  as  they 
are  laid ;  "  to  furnish  a  certain  number  of  water-plugs  for 
the  use  of  the  city,  free  of  charge;  and  to  deliver  up  the 
works,  at  the  expiration  of  his  lease,  at  their  value  as 
fixed  by  the  arbitrators.  The  act|of  the  legislature,  above 
referred  to,  confirmed  and  ratified  this  agreement,  and 
granted  to  Stein  all  the  rights,  privileges  and  immunities, 
which  had  been  previously  granted  to  the  corporate  au- 
thorities of  Mobile,  and  to  the  old  Mobile  Aqueduct 
Company. 

The  defendant  demurred  to  the  fifth  count  of  the  in 
dictment,  and  assigned  the  following  grounds  of  demur- 
rer :  "  1st,  because  no  criminal  knowledge  of  the 
character  of  the  water  is  set  out ;  2d,  because  the  charac- 
ter of  the  water,  or  that  which  makes  it  poisonous  or  un- 
wholesome, is  not  set  out;  3d.  because  the  contract  does 
not  require  Stein  to  furnish  'good  and  wholesome  water,' 
as  charged,  but  only  water  from  the  Three-mile  creek, 
and  it  is  not  charged  that  better  water  could  be  furnished 
from  said  creek,  or  that  there    has  been   any  default  in 


OF  ALABAMA.  33 


Stein  v.  The  State. 


this  respect;  4th,  because  the  names  of  the  persons  sold 
to,  are  not  properly  set  out;  and,  5th,  because  the  matter 
charged  is  not  an  indictable  offense."  The  court  over- 
ruled the  demurrer,  and  the  defendant  excepted. 

It  appeared  on  the  trial,  as  the  bill  of  exceptions  shows, 
that  leaden  pipes  were  used  by  the  defendant  in  the  dis- 
tribution of  water  through  some  of  the  streeU  of  the  city ; 
and  it  was  contended,  on  the  part  of  the  prosecution,  that 
this  rendered  the  water  unwholesome  and  poisonous. 
"  The  State  proved  by  Walkley,  who  was  a  practicing 
physician  and  chemist,  that  several  'persons,  who  drank 
water  supplied  to  him  by  the  defendant,  through  his 
hydrant,  were  affected  with  a  disease,  which  had  all 
the  symptoms  of  'lead  colic,'  and  which  he  considered 
*  lead  colic  ;'  and  evidence  was  offered  tending  to  show, 
that  said  disease  was  caused  by  drinking  the  water  from 
said  leaden  pipes.  Walkley  gave  the  symptoms,  diagno- 
sis and  treatment  of  lead  colic,  and  said,  that  paralysis  of 
the  hands  and  arms  was  one  of  the  most  certain  symp- 
toms;  and  he  gave  an  analysis  of  the  water,  and  much 
other  testimony  tending  to  show  that  said  water  was  un- 
wholesome and  poisonous  by  reason  of  the  lead.  The 
State  then  offered  one  Bruce  as  a  witness,  who  was  not  a 
physician,  and  who  testified, "that  three  of  his  children 
had  been  sick  and  paralyzed,  when  they  drank  water  from 
his  hydrant,  in  another  part  of  the  towu  ;  that  they  re- 
covered on  ceasing  to  driuk  it,  became  again  sick  and 
paralyzed  on  again  drinking  it,  and  again  recovered  on 
ceasing  to  drink  it.  The  defendant  objected  to  this  evi- 
dence— 1st,  because  he  was  not  indicted  for  selling  poison- 
ous water  to  Bruce,  and  his  case  was  not  mentioned  in 
the  indictment ;  and,  2d,  because  special  and  particular 
cases  of  injury,  not  alleged  in  the  indictment,  could  not 
be  proved  in  this  case.  The  court  overruled  the  objections, 
and  admitted  the  evidence;  to  which  the  defendant  ex- 
cepted. The  State  also  introduced  one  Thompson  as  a 
witness,  and  asked  him,  'what  he  knew  about  the  lead 
pipes.'  He  testified,  that  he  formerly  used  water  from 
the  lead  pipes  ;  that,  while  he  did  60,  a  negro  on  his  lot 


34     SUPREME  COURT 

Stein  v.  The  State. 

was  sick,  and,  in  describing  his  sickness  to  him,  com- 
plained of  a  pain  and  weakness  in  his  arm;  and  that  he 
(witness)  was  not  a  physician.  The  defendant  objected 
to  this  evidence,  also,  on  the  same  grounds  as  to  the  evi- 
dence of  Bruce,  and  because  the  negro's  statements  to  the 
witness  were  mere  hearsay.  The  court  overruled  the  ob- 
jections, and  admitted  the  evidence  ;  to  which  the  defend- 
ant excepted." 

Jno.  T.  Taylor,  with  whom  was  E.  S.  Dargan,  for  the 
defendant,  made  the  following  (with  other)  points  : 

1.  The  indictment  fails  to  show  an  indictable  offense.  If 
all  the  allegations  in  it  were  true,  the  defendant  would 
only  be  liable,  in  a  civil  action,  for  a  breach  of  contract. 
4  Bla.  Com.  4  ;  1  ib.  4G  ;  3  Greenl.  Ev.  §  1 ;  1  Mass.  137  ; 
Code  of  Alabama,  §  3065.  Moreover,  if  an  indictment 
would  lie  for  a  breach  of  the  contract,  this  indictment 
fails  to  show  a  breach.  J  The  contract  itself,  which  is  set 
out  in  the  indictment,  simply  binds  the  defendant  to 
supply  the  city  of  Mobile  with  water  from  the  Three-mile 
creek,  and  contains  no  stipulation  as  to  the  character  or 
quality  of  the  water.  The  indictment  does  not  charge 
that  he  failed  to  bring  water  from  Three-mile  creek,  or 
that  he  brought  water  from  elsewhere  than  the  Three- 
mile  creek,  or  that  he  did  not  bring  as  good  water  as  that 
creek  affords,  but  simply  that  he  brought  "  unwholesome 
water," — an  allegation  which  may  consist  with  the  entire 
fulfillment,  on  his  part,  of  every  obligation  imposed  on 
him  by  the  contract.  The  averment  of  the  indictment, 
that  the  contract  bound  him  to  furnish  "  good  and  whole- 
some  water,"  is  at  variance  with  the  contract  itself,  and 
amounts  to  nothing. 

2.  The  indictment  is  framed  strictly  on  the  contract, 
and  for  a  breach  thereof;  and  the  question  cannot 
be  raised  under  it,  whether  an  indictment  would  lie 
against  the  defendant,  independent  of  the  contract,  for 
the  common-law  offense  of  selling  poisonous  water.  But 
the  indictment  is  fatally  defective,  whether  considered  as 
framed  for  a  breach  of  the  contract,  or  for  the  common- 


OF  ALABAMA.  35 


Stein  v.  The  State. 


law  offense,  because  it  does  not  contain  such  a  statement 
of  the  charge  as  is  required  by  the  cardinal  doctrines  of 
the  criminal  law.  The  constitution  itself  requires,  that 
the  offense  shall  be  described  in  the  indictment  fully, 
plainly,  and  formally :  in  such  language  as  will  enable 
the  court  to  determine,  on  an  inspection  of  the  indict- 
ment, whether  the  charge  amounts  to  a  violation  of  the 
criminal  law,  and,  at  the  same  time,  inform  the  defend- 
ant of  the  nature  of  the  offense  with  which  he  is  charged, 
and  enable  him  to  prepare  for  his  defense;  in  such 
language,  too,  as  will  fully  identify  the  accusation,  and 
prevent  the  defendant  from  being  tried  for  an  offense 
different  from  that  which  was  investigated  by  the  grand 
jufry.— 3  Greenl.  Ev.  §  10  ;  Archb.  Cr.  PI.  42,  51 ;  29  Ala. 
28 ;  32  Ala.  584 ;  83  Ala.  397  ;  24  Miss.  594.  The  de- 
fendant was  convicted  for  introducing  water  into  the  city 
through  leaden  pipes  ;  yet  neither  he  nor  the  court  could 
say,  from  an  inspection  of  the  indictment,  that  this  was  the 
charge  which  the  grand  jury  had  investigated  and  pre- 
ferred against  him.  The  indictment  ought  to  have  stated 
how,  or  by  what  means,  the  water  was  rendered  unwhole- 
some and  poisonous. — 2  Missouri,  226  ;  1  English,  519  ; 
3  Murph.  (N.  C.)  224;  21  Maine,  9  ;  13  Metcalf,  365; 
3  Iredell,  111 ;  Breese,  4  ;  6  Grattan,  675  ;  31  Maine,  401 ; 
3  Blackford,  193.  In  the  analogous  cases  of  indictments 
for  selling  unwholesome  provisions,  and  for  attempts  to 
poison,  such  an  allegation  is  indispensible  to  the  validity 
of  the  indictment.— 11  Ala.  57  ;  6  Ala.  664  ;  19  Ala.  28, 
aud  numerous  cases  there  jcited.  It  should  have  been 
averred,  too,  either  that  the  defendant  himself  poisoned 
the  water,  or  that  he  knowingly  sold  unwholesome  and 
poisonous  water;  otherwise  he  might  be  tried,  convicted 
and  punished,  for  the  act  of  a  third  person,  of  which  he 
was  wholly  ignorant  and  blameless. — 3  Greenl.  Ev.  §  13  ; 
1  Bishop's  Criminal  Law,  §§  80,  227 ;  Rex  v.  Wheatley, 
1  Leading  Criminal  Cases,  7. 

3.  The  testimony  of  Bruce  was  improperly  admitted. 
If  the  indictment  is  to  be  considered  as  preferred  against 
the  whole  water-works  for  a  nuisance,  evidence  of  special 


36  SUPREME  COURT 

Stein  v.  The  State.  ■ 

cases  of  injury  was  inadmissible;  and  if  it  is  to  be  con- 
sidered as  an  indictment  for  individual  cases  of  selling 
unwholesome  water,  the  evidence  must  be  confined  to  the 
persons  named  in  the  indictment. — 3  Greenl.  Ev.  §  22 ; 
20  Ala.  83  ;  25  Ala.  40  ;  32  Ala.  584. 

4.  The  testimony  of  Thompson  ought  to  have  been 
excluded  for  the  same  reasons,  and  because  it  was  mere 
hearsay. 

R.  B.  Armeste^d,  with  whom  were  R.  H.  Smith,  and 
M.  A.  Baldwin,  Attorney-General,  contra. — 1»  The  fifth 
count  of  the  indictment  is  framed  on  the  idea,  that  the 
defendant  is  a  public  contractor,  and  has  failed  to  perform 
a  public  duty  imposed  on  him  by  the  terms  of  his  con- 
tract. That  the  indictment  shows  an  indictable  offense, 
see  8  Bligh,  691 ;  3  Barn.  &  Ad.  77  ;  5  Bing.  91. 

2.  That  the  indictment  is  good  and  sufficient,  whether 
founded  on  the  defendant's  contract,  or  considered  as  an 
indictment' for  a  public  nuisance,  without  an  averment  of 
the  scienter,  see  3  Hawks,  378;  Wharton's  Precedents, 
764  ;  28  Vermont,  583";  6  Car.  &  P.  292  ;  3  Indiana,  193; 
4*6.515;  ION.  H.  297;  1  Serg.  &  R.  342  ;  6  Porter,  372; 
5  Porter,  366 ;  3  Archb.  Pr.   007 ;  1  Hawk.  P.  C.  692 ; 

I  Russell  on  Crimes,  318;  Wharton's  Crim.  Law,  2373; 

II  Humph.  217;  9  Barb.  S.  C.  173. 

3.  The  indictment  being  for  a  nuisance,  the  testimony 
of  Bruce  and  Thompson  was  clearly  admissible.  -That 
the  complaints  of  the  negro  were  admissible,  as  a  part  of 
the  resyestcc,  see  17  Ala.  620  ;  6  East,  188;  2  Car.  &  K. 
354 ;  1  Greenl.  Ev.  §  102,  and  cases  cited. 

A.  J.  WALKER,  C.  J.— [Feb.  23,  1861.]— When  a 
party  owes  the  public  a  duty,  although  resulting  from  a 
contract,  he  is  indictable  for  a  breach  of  that  duty.  The 
obligation  to  the  public,  imposed  on  the  defendant  by  his 
contract,  was  to  supply  water  to  the  city  of  Mobile  from 
Three-mile  creek.  The  coatract  itself  stipulates  nothing 
as  to  the  quality  of  water  that  may  be  furnished,  further 
than  may  be  implied  in  the  requisition,  that  it  shall  be 


OF  ALABAMA.  37 


Stein  v.  The  Stale. 

brought  from  Three-mile  creek.  The  indiotment  alleges 
the  defendant's  failure  and  neglect  to  supply  "good  and 
wholesome  water"  to  the  inhabitants  of  Mobile,  and  also 
the  sale  and  supply  by  him,  to  those  inhabitants  and  the 
persons  visiting  the  city,  of  "  unwholesome  and  poison- 
ous water."  The  former  branch  of  this  allegation  is  in- 
determinate,  and  comports  equally  with  the  idea,  that 
there  was  not  a  supply  of  any  water  at  all,  or  that  there 
was  a  supply  of  water  which  was  positively  bad.  In 
either  alternative,  there  would  be  a  failure  to  supply 
"good  and  wholesome  water."  The  meaning,  however, 
becomes  certain,  when  reference  is  had  to  the  latter 
branch  of  the  allegation,  which  shows  that  there  was  a 
supply  of  water;  and  the  consistency  of  the  two  is  pre- 
served, by  considering  the  former  as  asserting  that  the 
water  supplied  was  not  good  and  wholesome.  There  is, 
then,  no  allegation  of  a  failure  to  supply  water.  The 
gravamen  is,  that  there  was  a  supply  of  water,  the  quality 
of  which  was  unwholesome  and  poisonous.  The  defend- 
ant may  have  supplied  water  from  Three-mile  creek, 
which  was,  in  the  language  of  the  indictment,  "unwhole- 
some and  poisonous,"  because  the  water  of*the  creek  was 
unwholesome  and  poisonous  ;  and  he  may,  therefore,  have 
perpetrated  the  grievauce  alleged  in  the  indictment,  in 
the  exact  fulfillment  of  his  contract.  The  indictment, 
therefore,  shows  no  violation  of  any  duty  imposed  on  the 
defendant  by  the  terms  of  his  contract;  and  we  may  dis- 
miss from  our  consideration  the  arguments  which  refer 
his  criminality  to  a  breach  of  his  contract. 

[2.]  The  indictment  charges,  however,  that  the  poison- 
ous water  was  supplied  to  all  the  citizens  of  Mobile,  and 
to  those  who  might  visit  the  city.  Such  an  act  is  suffi- 
ciently general  and  extensive  in  its  effects  to  constitute  a 
nuisance  ;  aud  the  poisoning  of  the  water  consumed  by 
an  entire  community,  and  by  all  who  might  go  that  way, 
would  certainly  possess  the  quality  of  injuriousness  to 
the  community,  requisite  to  constitute  a  nuisance. — 
1  Bishop's  Criminal  Law,  352;  2  z'6.848.  If,  then,  the 
indictment  shows  that  the  defendant  is  criminally  guilty 


38  SUPREME  COURT 

Stein  v.  The  State. 

of  inflicting  the  public  injury  alleged,  it  is  a  good  accu- 
sation of  nuisapce.  The  indictment  does  not  charge  that 
the  defendant  knowingly  or  intentionally  supplied  water 
of  unwholesome  or  poisonous  quality;  nor  that  he 
poisoned  the  water,  or  imparted  to  it  its  unwholesome 
quality ;  nor  that  the  same  was  done  by  his  agents  or 
servants.  The  defendant  may,  therefore,  have  done  all 
that  is  alleged,  and  yet  have  been  guilty  of  no  known  or 
intentional  wrong.  Can  it  be  that,  upon  such  facts,  the 
defendant  is  criminally  guilty  ? 

The  theory  of  the  law  is,  that  a  criminal  intent  is  a 
necessary  ingredient  of  every  indictable  offense.  The 
maxim  is,  Actio  nonfacit  reum,  nisi  mens  sit  rea.  It  is  not 
necessary,  in  all  cases,  either  to  aver  or  prove  the  guilty 
intent;  and  the  influence  of  legal  presumptions  may, 
sometimes,  be  such,  that  the  legal  imputation  of  a  guilty 
intent  may  be  made  in  contravention  of  the  fact;  as  for 
instance,  the  presumption  that  every  one  knows  the  law. 
"Where  the  gist  of  the  offense  is  neglect,  or  carelessness, 
it  would,  as  a  general  rule,  be  a  solecism  to  speak  of  a 
guilty  knowledge,  since  the  neglect  itself  usually  eviden- 
ces the  guilty  mind;  and  the  principle  has  been  carried, 
in  some  cases,  to  the  extent  of  making  one  criminally 
responsible  for  not  using  proper  precaution  to  prevent  the 
injurious  acts  of  his  servant.  On  this  principle  rest  the 
decisions,  where  the  servant  rendered  bread  unwholesome, 
by  the  improper  use  of  the  ingredients  ;  where  the  su- 
perintendent of  a  gas  company  corrupted  the  water  of  the 
river  Thames,  by  conveying  into  it  deleterious  gases  and 
fluids;  where  the  engineer  of  a  railroad  neglected  to  ring 
the  bell,  or  blow  the  whistle,  at  the  crossing  of  a  street ; 
where  the  owner  of  a  river  caused  detriment  to  neighbor- 
ing lands  by  neglecting  to  scour  it;  where  a  corporation 
neglected  to  repair  sea  walls,  in  violation  of  its  charter  ; 
and  where  other  neglects,  of  like  character,  have  been  com- 
mitted.— Vermont  v.  Central  Railroad,  28  Vermont,  583; 
Rex  v.  Medley,  6  Car.  &  P.  292 ;  Henley  v.  Mayor  of 
Lime,  5  Bing.  91 ;  S.  C,  5  B.  &  Ad.  77 ;  S.  C,  8  Bligh's 
New   R.   690;    1  Bishop  on  Criminal  Law,    230,    231; 


OF  ALABAMA.  39 


Stein  v.  The  State. 


Wharton's  Amer.  Criminal  Law,  10,  11.  But  this  prin- 
ciple does  not  apply  here,  because  the  charge  against  the 
defendant  is  really  an  act  committed,  and  not  the  omis- 
sion or  negligent  performance  of  an  act.  Neglecting  to 
supply  good  and  wholesome  water,  and  supplying  un- 
wholesome and  poisonous  water,  cannot  tye  tortured  into 
a  eimple  charge  of  neglect.  As  well  might  it  be  said, 
that  he  who  administers  poison,  dissolved  in  water,  is 
6imply  guilty  of  neglecting  to  administer  pure  water;  or 
that  he  who  sells  poisoned  bread,  is  simply  guilty  of  neg- 
lecting to  sell  wholesome  bread.  Such  sophistry  would 
convert  every  positive  act  into  a  neglect.  The  poisonous 
quality  of  the  water  certainly  may  have  been  the  result 
of  some  negligence,  or  carelessness,  in  the  choice  or  ar- 
rangement of  the  instruments  employed  in  supplying  it: 
but  such  is  not  the  charge,  and  we  cannot  aid  the  indict- 
ment by  an  inference  of  it. 

It  is  a  received  priruuple,  also,  that  "  where  the  state- 
ment of  the  act  itself  includes  a  knowledge  of  the  ille- 
gality of  the  act,  no  averment  of  knowledge  or  bad  intent 
is  necessary." — Wharton's  Amer.  Crim.  Law,  297;  Com- 
monweath  v.  Stout,  7  B.  Monroe,  217;  Commonwealth 
v.  Elwell,  2  Metcalf,  190.  "  The  law  presumes  that  every 
person  intends  to  do  that  which  he  does." — 1  Bishop  on 
Criminal  Law,  §  248.  Hence,  whenever  one  does  an  act 
legally  wrong  in  itself,  the  law  presumes  the  intent  to  do 
that  act :  the  act,  of  itself,  evidences  the  illegal  intent. 
The  doing  of  an  act  in  its  nature  illegal — illegal  without 
any  extrinsic  qualification — of  itself  evidences  the  criminal 
intent.  But  such  is  not  the  character  of  the  act  charged 
here.  The  furnishing  of  poisoned  water  is  not,  of  itself, 
a  crime  :  the  criminality  of  the  act  depends  upon  the 
question,  whether  it  was  furnished  with  a  knowledge  of 
the  poisonous  quality;  knowledge  is  an  ingredient  of 
the  offense,  and  must  be  averred. — Wharton's  Am.  Crim. 
Law,  297  ;  State  v.  Brown,  2  Speers,  129.  Accordingly, 
where  one  is  indicted  for  selling  an  obscene  book,  or  for 
carrying  oft'  a  slave,  or  for  an  indecent  exposure  of  the 
person,  or  for  keeping  and  suffering  to  go  at  large  a  dog 


i  >URT 

au  animal  or  with  a  i 

in  wholesome  • 
for  uttering  a  forged  note,  or 
. — it  ig  held,  that  an  ;.. 
kuowled  lary. — 1   Bennett  k  Beard's 

Criminj  351;  Wharton's  Am.  Crim, 

idictmcn 
rchbold's  Crim. 
44;  8  Chitty'a  Crim.  13;  Dui  7  Hum. 

im  Gray,  1  V  tin  uu  mo  n  wealth  v. 

Stout,  7  B.  Mo 

The  r  rules  pertaiuing  to  tl  ity 

of  a-.  nter.  winch   it  is  not  necessary  for  a 

|»re- 
sumed  to  intend  the  natural  and   pr< 

■>.-     1   Bishop  on  Criminal  Law.  248.      From  the 
that   the  criminality  of  BUpplyil 
being  d 
iia  quality,  it  is  au  uui 
that  km 
and  I  the 

indi 

ror  iu  the  admisi 

.ml  Thompson.     Tli 
to  the  question,  wli 
irnished  uuvvhoh  ublic 

in  tl  t   Mobile.     The 

U  the 
pri:i  I    in    num«  .    by    this 

v.  Eft 

W<  any  of  the  other 

■ 
J';  ind<  d. 


OF  ALABAMA.  41 


Oliver  v.  The  State. 


OLIVER  vs.  THE  STATE. 

[iMDICTVBNT    FOR   OliTATNlNi;    MONKV    B1  KTENSES.] 

1.  Joinder  of  counts. — Tn  an  indictment  for  obtaininp  money  by  false 
.  if  the  false  pretense  L,  in  different  counts,  to 

hiiv^  tade  to  "0.  B.  8,  *j>d  0.  L.  s ..  who  w<  re  at  the  time 

members  <>f  n  mercantile  firm  of  the  name  and  -.,"  to 

"C  B.  S.."  and  to    "i".  B.  8.  and  C.  L.  S.,"   th<  inder 

of  9 

ent  in  averring  value  of  property. — An  aver- 
ment in  such  indictment,  that,  by  means  of  the  false  pretense 
charf  ndant   obtained  "sixty-five  dollars  in  money,"  is 

Bufficicntly  definite  and  certain,  without  an  additional  averment  of 
the  value  of  the  money. 

in.  description  of  written  instrument. — An  instru- 
ment  of  writing,  purporting  in  its  commencement  to  he  an  inden- 
ture  between  two  parties,  reciting  that  the  party  of  the  Erst  part, 
for  a  valuable    consideration,    "has  sold,   and    hinds    himself   to 
deliver,  to  the  said  party  of  the  second  part,  all  of  his  p] 
of  cotton   now   planted,  or  so  mu«'li  of  it  as  will  satisfy  his  indebt- 
|  arty  of  the  second  part ;"  that  "  this  conveyance 
i    is  a  security  f<>r  the  payment''  of  a  debt  due  from  tin- 
party  of  the  first  part  t<>  ih<'  party  of  the  second   part,  "which 
.   will  i<  od<  r  this  conveyance  void,  and,  if 
ml  t  be  made  in  men  t  of  the  above  sum,  then  th< 

■i  part,  and  In-  j    author;. 

;n  crop  of  cotton,  or  as  much  of  it  as  "ill    pay   all  of 
irty  of  the   s<  cond    ,  i  and 

■     ..t  the  lii  »l   part,     is  suffici<  ntl;  d  in 

ble  in  evid 
I  ion. 

Tried  b  Hon.  A.  A.  Colkmax. 

a 
.n  this  •  -ils  : 

"T  county  fore 

•8  Oliver  did  fnlfiely 
B  iiarlcs   I. 

of  a  mercantile  firm  of 
te   ami  .  with    il 

ad  latisJied   a  c<  rttlt, 

1 


42  SUPREME  COURT 


Oliver  v.  The  State. 


which  William  P.  Richardson  had  or  held  upon  the  said 
James  Oliver's  cotton  crop;  and  that  he,  the  said  William 
Pinckney  Richardson,  had  directed  and  given  authority 
to  him,  the  said  James  Oliver,  to  receive  from  the  said 
Sanders  &  Stone  the  proceeds  of  said  cotton  crop,  which 
was  then  in  their  hands;  aud,  by  means  of  such  false 
pretense,  obtained  from  the  said  Sanders  &  Stone  the  sum 
of  sixty-five  dollars  in  money;  against  the  peace  and  dig- 
nity," &c. 

"The  g^rand  jurors  of  said  county  further  charge,  that, 
before  the  finding  of  this  indictment,   the  said  James   . 
Oliver  did  falsely  pretend  to  Cornelius  B.  Sanders,  with 
intent  to  defraud,  that  he,  the  said   James   Oliver,   had 
satisfied  a  certain  deed  of  trust,  which  he,  the  said  James 
Oliver,  had  made  to  one  W.  P.  Richardson   on  the  15th 
day  of  May,  1857,  upon  the  crop  of  cotton  which  he,  the 
said  James  Oliver,  had  planted  at  the  time  said  deed  was 
made;  and  that  he,  the  said  Oliver,  was  authorized  by  the 
said  W.  P.  Richardson  to  receive  from  him,  the  said  Cor- 
nelias B.   Sanders,  the   proceeds  of  the  sale  of  the  said 
cotton  crop,  which  was,  at  the  time  of  said -false  pretense, 
in  the   hands  of  the  said  Cornelius  B.  Sanders;  and,  by    ' 
means  of  such  false  pretense,  obtained  from  the  said  Cor- 
nelius B.  Sanders  the  sum  of  sixty-five  dollars  in  money,  * 
being  part  of  the  proceeds  of  the  said  cotton  crop  so  in 
the   hands  of  the   said   Sanders;  against   the  peace   aud    , 
dignity,"  &c. 

^The  grand  jurors  of  said  county  further  charge,  that, 
before  the  finding  ot  this  indictment,  the  said  James 
Oliver  did  falsely  pretend  to  Cornelius  B.  Sanders  and 
Charles  L.  Stone,  with  intent  to  defraud,  that  he  had  sat- 
isfied a  certain  deed  of  trust,  made  by  him,  on  the  loth 
day  of  May,  1857,  to  one  W.  P.  Richardson,  upon  the 
crop  of  cotton  which  he,  the  said  James  Oliver,  had 
planted  at  the  time  said  deed  was  made,  and  that  he,  tfje 
said  James  Oliver,  was  authorized  by  the  said  W.  P. 
Richardson  to  receive  from  them,  the  said  Cornelius  B. 
Sanders  and  Charles  L.  Stone,  certain  proceeds  of  the 
sale  of  said  cotton  crop,  whidh  they  had  in  their  hands; 


OF  ALABAMA. 


Oliver  v.  The  State 


and, ^y,  means  of  such  false  pretense,  obtained  from  the 
said  Cornelius  B.  Sanders  and  Charles  L.  Stone  the  sum 
of  sixty-five  dollars  in  money;  against  the  peace  and 
dignity,"  &c. 

The  defendant  demurred  to  the  indictment — "1st,  be- 
cause the  money  is  not  charged  to  be  the  property  of  any 
person;  2d,  because  there  is  no  value  charged  as  to  the 
money;  3d,  because  it  is  uncertain  whether  the  defendant 
is  charged  with  a  felony  or  not;  4th,  because  there  is  a 
double  issue  presented  in  eaeh  count;  5th,  because  there 
is  a  special  pretense  without  a  special  breach;  6th,  be- 
cause there  is  a  misjoinder  of  counts  and  offenses;  and, 
7th,  because  the  indictment  is  uncertain  and  obscure." 
The  court  overruled  the  demurrer,  but  the  record  does 
not  show  that  the  defendant  reserved  an  exception  to  its 
decision. 

"On  the  trial,"  as  the  bill  of  exceptions  states,  "the 
State  offered  in  evidence  an  instrument  of  writing,  which 
had  been  duly  proved  and  recorded  according  to  law,  and 
of  which  the  following  is  a  copy:  'This  indenture,  made 
the  15th  day  of  May,  1857,  between  James  Oliver,  of  the 
first  part,  and  W.  P.  Richardson,  of  the  second  part,  (all 
of  the  State  of  Alabama,  and  county  of  Pickens.)  wit; 
nesseth,  that  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  sum  of  one  hundred  and  seventy- 
eight  25-100  dollars,  to  him  duly  paid  in  hand,  has  sold, 
and  binds  himself  to  deliver,  to  the  said  party  of  the 
second  part,  all  of  his  present  crop  of  cotton  now  planted, 
or  so  much  of  it  as  will  satisfy  his  indebtedness  to  the 
said  party  of  the  second  part.  This  conveyance  is  in- 
tended as  a  security  for  the  payment  of  one  hundred  and 
seventy-eight  25-100  dollars,  on  the  25th  day  of  De< 
ber,  1857  ;  .which  payment,  if  duly  made,  will  render  this 
conveyance  void;  and  if  default  be  made  in  the  payment 
of  the  above  sum,  then  the  said  party  of  the  second  | 
and  his  assigns,  are  hereby  authorized  to- sell  his  certain 
crop  of  cotton,  or  so  much  of  it  as  will' pay  all  of  his  dues 
to  the  said  party  of  the  second  part,  with  costs  -and  ex- 
penses allowed  by  law.     In  witness  whereof,  I  have  here- 


44  SUPREME  COURT 

Oliver  v.  The  State. 


unto  set  nay  hand  and  seal.'  (Signed)  'James  Oliver.' 
[Seal.]'  The  defendant  objected  to  the  introduction  of 
said  paper  as  evidence  to  the  jury,  but  the  court  overruled 
his  objection;  and  he  excepted." 

W.  R.  Smith,  for  the  prisoner. — 1.  The  indictment  is 
defective,  in  the  several  particulars  which  were  assigned 
as  grounds  of  demurrer.  It  charges  a  special  pretense, 
but  assigns  no  breach  of  that  pretense.  It  does  not 
charge  the  ownership  of  the  money;  and  non  constat  but 
that  it  whs  the  property  of  the  defendant  himself.  It 
does  not  charge  the  value  of  the  money,  and,  therefore, 
leaves  it  uncertain  whether  any  offense  was  committed. 
It  charges  the  false  pretense  to  have  been  made  to  differ- 
ent persons,  and  t\\-2  money  to  have  been  obtained  from 
different  persons  ;  and  presents  as  plain  a  case  of  mis- 
j  oinder,  as  if  it  alleged,  in  different  counts,  a  larceny  from 
A  aud  a  larceny  from  B,  or  an  assault  and  battery  on  A 
and  an  assault  and  battery  on  B. 

2.  The  term  "deed  of  trust,"  as  used  in  the  indict- 
ment, must  be  construed  in  its  legal  sense.  In  a  techni- 
cal deed  of  trust  there  must  be  a  trustee.  The  paper 
read  in  evidence,  conveyed  no  legal  title  to  any  one,  and 
only  gave  Richardson  power  to  sell  his  own  cotton.  The 
crop  planted  was  a  more  expectancy,  and  could  not  be- 
come Richardson's  until  actually  delivered. 

M.  A.  Baldwin,  Attorney-General,  contra,  cited  John- 
son v.  The  State,  20  Ala.  62;  O'Connor  v.  The  State, 
30  Ala.  9;  People  v.  Stetson,  4  Barbour,  151. 

STONE,  J.— [March  1,  1861.]— The  indictment  in  this 
case  contains  three  counts,  each  of  which  is  a  substantial 
compliance  with  the  form  furnished  in  the  Code, — form 
No.  35,  page  702.  The  only  difference  in  the  three  counts 
consists  in  the  designation  of  the  person  to  whom  the 
false  pretense  was  made.  The  varying  averments  in  the 
several  counts,  in  this  regard,  were  evidently  inserted  to 
meet   every  possible   phase  of  the   proof;   as  the  same 


OF  ALABAMA.  45 


Merkle  v.  The  State. 


might  arise.  The  averment  of  the  person  to  whom  the 
false  pretense  was  made,  was  part  and  parcel  of  (he  rjieans 
by  which  the  offense  was  committed.  The  counts  are 
severally   good. — Lowenthall  v.  The   State,  32  Ala.   . 

We  have  frequently  held,  that  two  or  more  counts 
might  he  joined  in  the  same  indictment,  each  of  which 
charged  ft  distinct  felony,  if  the  offenses  were  of  the  same 
character,  and  subject  to  the  same  punishment. — Johnson 
v.  The  State,  20  Ala.  G2  ;  Cawley  v.  The  State,  at  the 
present  term.  The  demurrer  for  misjoinder  was  properly 
overruled. — Scott  v.  The  State,  at  the  present  term. 
.  [2.]  Money  is,  itself,  a  measure  of  value;  and  that  value 
cannot  he  rendered  more  definite  by  an  averment  of  its 
value.  The  phrase  "sixty-five  dollars  in  money,"  has  a 
defined  meaning,  which  is  not  rendered  more  clear  by  the 
Superadded  expression,  worth  sirtu-jicr  dollars. 

[3.]  The  instrument  read  in  evidence  was  sufficiently 
•described  as  "a  deed -of  trust." — Price  v.  Mastersou, 
,35  Al».  393. 

The  judgment  of  the  circuit  court  is  affirmed. 


MERKLE  v*.  THE  STATE. 

[rHDICTKBJSlT  FOR  SELLING  LIQUOK  TO  STUDENT  OF  COLLEGE.] 

1.  Opinion  of  witness,  admissibility  of. — A  witness  who  has  frequently 
drunk  fermented  liquors,  and  who  can  distinguish  them  by  their 
taste,  though  he  has  no  special  knowledge  of  chemistry,  is  compe- 
tent to  express  an  opinion  on  the  question,  whether  lager  beer  is 
or  is  not  a  fermented  liquor. 

2.  Books  of  science,  admissibility  of. — Extracts  from  standard  medical 
books  are  competent  evidence,  ami  may  be  read  to  the  jury. 

3-  Wftflt constitutes  offense  of selling  liquor  to  stud  fid  or  minor. — The 
statute  prohibiting  the  sale  or  delivery  of  liquor  to  students  or  ' 


46  SUPREME  COURT 

Merkle  v.  The  State. 

minors,  (Code,  \\  3280-81,)  applies  to  fermented   liquors  as  well  as 
to  vinous  or  spirituous  liquors. 


From  the  Circuit  Court  of  Perry. 
Tried  before  the  Hon.  Porter  King. 

In  this  case,  Luther  Merkle  and  William  II.  Redding 
were  jointly  indicted   for  selling  liquor  to  a  student  of 
Howard  college,  in  the  town  of  Marion,  and  were  jointly 
tried.     On  the  trial,  as  the  bill  of  exceptions  shows,  the 
State  first  introduced  as  a  witness  one  Pollard,  the  student  . 
to  whom  the  liquor  was  sold,  and  who  testified  to  the 
fact  that,  within  the  period  covered  by  the  indictment 
he    bought   a  glass   of  lager    beer  from    the    defendant 
Merkle,  who  was  acting   as  clerk  or  ascent  for  his  co-de- 
fendant,  in  a  confectionary  store  belonging  to  the  latter. 
The  State  then  introduced  one  Thornton   as  a  witness, 
who  testified,   "  that  he  was  professor  of  chemistry   in 
Howard  eollege ;  that  the  fermentation  of  organic  bodies 
is  one  of  the  subjects  treated   of  in  Chemistry;  that  he 
had  studied  that  subject  in  the  different  books  on  chemis- 
try, and  was  theoretically  acquainted  with  it,  but  had  no 
practical   knowledge  of  the   process  of  fermentation,  or 
the  art  of  brewing;  that  he  had  drunk  lager  beer  at  various 
places,  and  in  the  store  of  the  defendant  Redding;  and  that 
he  was  acquainted  with  the  taste  of  fermented  liquors,  from 
having  frequentl}'  drank  liquors  which  were  fermented." 
On  this  state  of  facts,  the  court  allowed  the  witness,  against 
the  objection  of  the  defendant  Merkle,  to  state  that,  "lii 
his  opinion,  lager  beer  is  a  fermented  liquor;  "  to  which 
said  Merkle  excepted.     Said  witness  afterwards  testified, 
on  cross-examination,  "  that  he  knew  nothing  of  the  fer- 
mentation of  liquors,  except  what  he  had  read  in  books 
on  the  subject ;  that   he  was  not  a  brewer,  and  knew 
nothing    whatever,  practically,  of  the    fermentation    of 
liquors;  that  all  he  knew  on  the  subject  was  theoretical, 
and  derived  from  books  ;  that  in  speaking  on  the  subject, 
he  had  only  given,   and   could  only  give,   the   contents 
thereof,  so  far  as  he  knew  the  same  ;  that  the  books  them- 


OF  ALABAMA.  47 


Merkle  v.  The  State. 


selves,  if  in  court,  would  be  better  evidence  than  his 
testimony,  because  he  could  not  use  such  language  as  was 
used  in  them,  and  could  not  recollect  all  that  was  there'll 
stated  on  the  subject;  that  his  knowledge  of  chemistry 
did  uot  aid  him  in  reference  to  knowledge  acquired  by 
tasting  said  beer;  and  that  one  not  acquainted  with 
chemistry  could  judge  of  said  beer,  by  the  taste,  as  well 
as  he."  On  these  facts,  the  defendant  Merkle  moved  the 
court  to  exclude  from  the  jury  the  Opinion  of  the  witn 
above  stated,  and  reserved  an  exception  to  the  overruling 
of  his  objection.  The  State  afterwards  read  in  evidence 
to  the  jury  an  extract  from  the  "  United  States  1) 
ion/,"  by  Wood  &  Burke,  on  the  subject  of  vinous  and 
fermented  liquors  ;  having  first  proved,  by  the  testimony 
of  a  practicing  physician,  "  that  said  book  was  recognized 
by  the  medical  profession  as  good  authority  on  all  subjects 
therein  treated  of;  "  and  to  the  admission  of  this  ex-, 
tract  as  evidence  the  defendant  Merkle  excepted.  The 
court  charged  the  jury,  among  other  things,  "that,  if 
they  believed  the  beer  sold  to  said  Pollard  was  a  ferment- 
ed liquor,  it  would  be  their  duty  to  find  said  Merkle 
guilty,  whether  said  beer  would  intoxicate  or  net ;  "  to 
which  charge  said  Merkle  reserved  an  exception. 

Brooks  &  Garrott,  for  the  defendant. 
M.  A.  Baldwin,  Attorney-General,  contra. 

II.  W.  WALKER,  J.— [Jan.  22,  1861.]— It  may  be  ad- 
mitted, that  the  bill  of  exceptions  excludes  the  idea,  that 
the  witness  Thornton  was  at  all  aided  by  his  knowledge 
of  chemistry,  in  the  formation  of  his  opinion  that  lager 
beer  is  a  fermented  liquor.  It  is  shown,  however,  that 
he  had  frequently  drunk  fermented  liquors,  and  that  ho 
was  able  to  distinguish,  by  their  taste,  liquors  which  have 
undergone  the  process  of  fermentation.  We  hold,  that 
such  a  witness,  even  though  he  may  have  no  special 
knowledge  of  the  science  of  chemistry,  may  be  permitted 
to  testify,  that  a  particular  liquor,  which  he  has  tasted,  is, 
or  is  not,  fermented.    The  answer  to  the  question,  whether 


48  SUPREME  COURT 


Murphy  v.  The  State. 


a  liquor  has  gone  through  the  process  of  fermentation, 
does  not  necessarily  demand  a  knowledge  of  chemical 
science,  but  is  usually  determinable  by  the  senses  ;  and 
consequently,  the  judgment  of  ordinary  persons,  having 
an  opportunity  of  personal  observation,  and  of  forming 
a  correct  opinion,  is  admissible. — McCreary  v.  Turk, 
29  Ala.  245;  Wilkinson  v.  Mosely,  30  Ala.  572;  Ward 
v.  Reynolds,  32  Ala.  384 ;  Pullman  v.  Corning,  14  Barb. 
174,181. 

[2  ]  The  book,  a  portion  of  which  was  read  in  evidence, 
was  shown  to  be  a  standard  medical  work;  and  under 
the  rule  adopted  in  Stoudenmuier  v.  Williamson,  (29  Ala. 
558,)  the  objection  to  the  extractas  evidence,  was  properly 
overruled. 

[3.]  Under  sections  3280  and  3281  of  the  Code,  it  is 
not  necessary  to  the  conviction  of  the  defendant,  that  the 
liquor  sold,  delivered  or  given  to  a  student  or  minorr 
should  be  intoxicating.  The  prohibitions  of  these  sec- 
tions extend  to  any  fermented  liquor  which  is  commonly 
used  as  a  beverage.  There  was,  therefore,  no  error  in 
the  charge  of  the  court. 


Judgment  affirmed. 


MURPHY  vs.  THE  STATE. 

[indictment  for  murder.] 

.  Challenge  of  jurors. — In  all  trials  for  capital  or  penitentiary  offenses, 
(Code,  \  3585,)  the  State  may,  at  its  election,  challenge  for  cause  a 
juror  who  has  a  fixed  opinion  against  capita!  or  penitentiary  pun- 
ishments; yet  the  statute  does  not  impose  on  the  court  the  duty, 
ex  mero  motu,  of  setting  aside  a  juror  for  this  cause;  nor  can  the 
prisoner  complain  if  the  State  waives  or  forbears  to  exercise  its 
right  of  challenge. 

.  General  objection  to  evidence.— A.  general  objection  to  evidence,  a 
part  of  which  is  legal,  may  be  overruled  entirely. 


OF  ALABAMA.  49 


Murphy  v.  The  State. 


3.  Homicide ;  presumption  of  malice.— The  charge  of  the  court  to  the 
jury  in  this  case,  as  to  the  presumption  of  malice  in  cases  of  homi- 
cide, construed  in  connection  with  the  fact,  indisputably  estab- 
lished, that  the  killing  was  perpetrated  with  a  deadly  weapon,  held 
to  contain  no  error  prejudicial  to  the  prisoner. 

From  the  Circuit  Court  of  Montgomery. 
Tried  before  the  Hon.  James  B.  Martin. 

The  prisoner  in  this  case,  Patrick  Murphy,  was  indicted 
for  the  murder  of  Hugh  Keys,  and  pleaded  not  guilty  to 
the  indictment.  "On  the  trial,"  as  the  bill  of  excep- 
tions states,  "the  court  asked  a  juror,  regularly  sum- 
moned, whether  he  had  a  fixed  opinion  against  capital  or 
penitentiary  punishment.  The  attorney-general  there- 
upon said,  that  he  would  waive  the  challenge  for  cause 
on  behalf  of  the  State.  The  prisoner  insisted,  by  his 
counsel,  that  the  juror  was  incompetent  for  cause,  and 
that  the  State  could  not  render  him  competent  by  waiv- 
ing the  objection.  The  court  held  otherwise,  and  put 
the  juror  upon  the  prisoner,  who,  to  avoid  his  being 
placed  on  the  jury,  was  compelled  to  challenge  him  per- 
emptorily, and  thereby  lessen,  to  that  extent,  his  number 
of  peremptory  challenges;  to  which  ruling  of  the  court 
the  prisoner  excepted." 

"To  prove  the  circumstances  of  the  killing,  the  State 
introduced  and  examined  as  a  witness  one  Mrs.  Keys,  the 
widow  of  the  deceased.  On  cross-examination  of  said 
witness,  the  prisoner's  counsel  asked  her,  whether  she  did 
not  swear,  on  the  preliminary  examination  of  the  prisoner 
before  Squire  Nettles,  on  the  23d  December,  1859,  for  the 
offense  for  which  he  was  now  being  tried,  that  'he, 
(meaning  the  prisoner,)  always  told  Mr.  Keys  to  come 
on  ;'  and  read  said  expression  to  her  from  her  sworn  de- 
position, taken  down  in  writing  on  said  preliminary 
examination.  Ihe  witness  stated,  that  she  had  not  so 
sworn  on  said  preliminary  examination.  Thereupon  the 
prisoner's  counsel  produced  and  proved  the  written  depo- 
sition of  said  witness,  as  taken  down  on  said  preliminary 
examination,  and  read   from  it  these  words,  '  He  always 


50  SUPREME  COURT 

Murphy  v.  The  State. 

told  Mr.  Keys  to  come  on ;'  and  proved  that  said  witness 
swore  to  said  expression  on  said  preliminary  examination. 
The  counsel  for  the  State  then  offered  to  read  the  whole 
deposition  of  said  witness,  as  written  down  on  said  pre- 
liminary examination  ;  not  as  original  evidence  in  the 
cause,  but  to  explain  the  testimony  of  said  witness,  and 
to  show  that  there  was  no  conflict  between  her  testimony 
then  and  now.  The  prisoner  objected  to  this  evidence, 
as  illegal,  irrelevant,  and  calculated  to  mislead  the  jury; 
but  the  court  overruled  his  objections,  and  admitted  the 
evidence  for  the  purpose  for  which  it  was  offered ;  to 
which  the  prisoner  excepted." 

The  court,  ex  mero  moiu,  charged  the  jury  as  follows: 
"Under  this  indictment,  if  the  evidence,  under  the 
law  as  laid  down  by  the  court,  warrant  it,  the  prisoner  may 
be  convicted  of  murder  in  the  first  degree,  murder  in  the 
second  degree,  or  manslaughter  in  the  first  degree.  Mur- 
der is  the  killing  of  a  reasonable  person,  with  malice 
aforethought,  express  or  implied.  Express  malice  is  evi- 
denced by  threats,  former  grudges,  lying  in  wait,  &c. ; 
while  malice  maybe  implied  from  the  preparation  made, 
the  chancter  of  the  weapon  used,  &c.  Manslaughter  is 
the  wrongful  taking  of  the  lite  of  a  reasonable  being, 
without  malice;  and  it  occurs  when  one  takes  the  life  of 
another,  in  sudden  heat  of  passion,  without  malice.  No 
killing  can  be  murder,  in  the  absence  of  malice  ;  nor  can 
a  killing  be  manslaughter,  when  done  with  malice.  It 
devolves  upon  the  State,  in  every  criminal  case,  to  prove 
the  facts  constituting  the  defendant's  guilt,  and  to  satisfy 
the  jury,  beyond  a  reasonable  doubt,  of  their. truth.  In 
this  case,  the  State  must  prove,  that  the  defendant,  prior 
to  the  finding  of  the  indictment,  and  in  the  county  of 
Montgomery,  killed  Hugh  Keys  with  malice  aforethought. 
So  regardful  is  our  law  of  human  life,  that  whenever,  it  is 
proved  that  one  person  has  taken  the  life  of  another,  the 
law  presumes  that  it  was  done  with  malice,  and  imposes 
upon  the  slayer  the  onus  of  rebutting  this  presumption, 
unless  the  evidence  which  proves  the  killing  itself  shows 
it  to  have  been  done  without  malice.    Murder,  by  our  law, 


OF  ALABAMA.  5L 


Murphy  v.  The  State. 


is  divided  into  two  degrees—  murder  in  the  first,  and  mur- 
der in  the  second  degree.  Every  homicide,  perpetrated 
by  poison,  lying  in  wait,  or  any  other  kind  of  willful,  de- 
liberate, malicious  and  premeditated  killing,  is  murder  in 
the  first  degree.  Every  homicide,  committed  with  malice 
aforethought,  and  which  is  not  embraced  in  the  above 
definition,  is  murder  in  the  second  degree.  Manslaugh- 
ter is  the  wrongful  killing  of  a  reasonable  creature  in 
being,  without  malice;  and  if  done  voluntarily,  is  man- 
slaughter in  the  first  degree. 

"Examine  this  case,  then,  first  in  reference  to  murder 
in  the  first  degree,  lias  the  State  proved,  that,  prior  to 
tbe  finding  of  this  indictment,  and  in  this  county,  the 
defendant  killed  Hugh  Keys  with  a  bowie-knife;  and 
further,  that  he  did  so  willfully,  deliberately,  malicioush', 
and  with  premeditation  ?  Docs  the  whole  evidence  in  the 
case  satisfy  your  minds,  beyond  a  reasonable  doubt,  that 
these  things,  and  each  of  them,  are  true?  If  so,  then 
the  defendant  would  be  guilty  of  murder  in  the  first  de- 
gree. D\  on  the  contrary,  the  evidence  fails  thus  to 
satisfy  your  minds,  either  of  the  killing,  or  that  it  was 
done  willfully,  deliberately,  maliciously,  and  with  pre- 
meditation, then  the  defendant  would  not  be  guilty  of 
murder  in  the  first  degree,  and  you  must  proceed  to  in- 
quire, whether  the  evidence  shows  him  to  be  guilty  of 
murder  in  the  second  degree.  It  is  conceded,  that  the 
defendant  took  the  life  of  Keys;  and  if  it  does  not  amount 
to  murder  in  the  first  degree,  then,  whether  it  is  murder 
in  the  second  degree,  depends  upon  the  question,  whether 
the  killing  was  done  with  malice  aforethought.  As  the 
court  has  already  informed  you,  when  a  killing  has-been 
proved,  the  law  presumes  that  it  was  done  with  malice, 
unless  the  same  evidence  which  proves  the  killing,  dis- 
proves or  rebuts  the  presumption  of  malice.  Does  the 
evidence  which  proves  the  killing,  itself  disprove  or  rebut 
the  presumption  of  malice?  If,  however,  this  evidence 
does  not  repel  the  presumption  of  malice,  then  look  to 
all  the  other  evidence  in  the  case, — both  that  which  tends 
to  rebut  the  idea  of  malice,  if  there  be  such  evidence,  and 


52  SUPREME  COURT 


Murphy  v.  The  State. 


all  the  evidence  tending  to  show  that  the  defendant  was 
actual  ed  by  malice,  if  there  be  such  evidence, — and  if  you 
find,  from  the  entire  evidence,  that  the  killing  was  done 
by  the  defendant  with  malice  aforethought,  and  that  it 
does  not  amount  to  murder  in  the  first  degree,  then  the 
defendant  would  be  guilty  of  murder  in  the  second  de- 
gree. But,  if  you  find,  upon  a  fair  purvey  of  the  evidence, 
that  the  killing  was  done  without  malice,  then  the  defen- 
dant would  not  be  guilty  of  murder ;  and  in  that  event, 
you  must  next  inquire,  whether  the  killing  amounted  to 
manslaughter.  If  the  defendant^  in  this  county,  and 
before  the  finding  of  this  indictment,  wrongfully  and 
voluntarily  killed  Hugh  Keys  with  a  bowie-knife*  without 
malice,  express  or  implied,  then  he  would  be  guilty  of 
manslaughter  in  the  first  degree. 

"Homicide  may  be  committed — human  life  may  be 
taken — upon  such  provocation ;  and  under  such  circum- 
stances, as  will  acquit  the  slayer  of  all  guilt;  and  such, 
the  defendant  says,  is  the  homicide  he  has  committed. 
He  insists,  that  though  he  took  the  life  of  Keys,  he  did  it 
in  self-defense;  that  he  did  it  to  save  his  own  life,  or  to 
save  his  person  from  great  bodily  harm.  The  law  on  that 
subject  is  this :  Every,  man  has  the  right  to  strike  in  self- 
defense — to  repel  force  by  force,  when  attacked,  even  to 
the  death  of  the  assailant;  provided,  that  the  force  which 
he  uses  is  not  disproportioned  to  the  force  which  he  is 
repelling.  In  this  case,  if  you  should  believe,  from  the 
evidence,  that  it  was  necessar}7  for  the  defendant  to  strike 
at  the  time  he  did  strike,  in  order  to  save  his  own  life,-  or 
to  prevent  the  infliction  of  imminent  and  great  bodily 
harm,,  and  that  he  struck  for  this  purpose,  then  the  de- 
fendant would  not  be  guilty.  Or,  if  you  should  believe 
that,  at  the  time  the  defendant  struck,  the  circumstances 
which  surrounded  him  were  such  as  would  have  impressed 
the  mind  of  a  reasonable  man  with  the  honest  belief,  that 
it  was  necessary  to  strike,  to  save  his  own  life,  or  to  pre- 
vent great  and  impending  bodily  harm;  and  that  the  de- 
fendant, actuated  by  these  motives,  struck, — then,  though 
death  was  the  consequence,  he  would  be  guiltless.     The 


OF  ALABAMA.  53 


Murphy  v.  The  State. 


law  excuses  the  taking  ot  human  life,  when  the  motive 
which  prompts  the  act  is  one  of  self-defense  and  self-pro- 
tection, and  under  circumstances  inducing  the  reasonable 
belief  that  the  act  was  necessary.  You  must  determine 
what  is  the  evidence  on  this  subject.  The  State  insists, 
that  the  defendant,  entertaining  the  malicious  intention 
to  take  the  life  of  Keys,  sought  a  quarrel  with  him,  in 
order  to  find  an  opportunity  to  gratify  his  mulice  by 
taking  his  life.  If,  from  a  survey  and  impartial  consid- 
eration of  all  the  evidence,  you  believe  that  this  is  true — 
that  the  defendant  sought  the  quarrel  with  the  deceased, 
in  order  that  h'j  might  take  advantage  of  it  to  kill  him,* 
and,  in  obedience  to  this  intention,  did  bring  on  the 
quarrel,  and  did  take  the  life  of  the  deceased — then,  no 
provocation,  no  danger  to  himself,  thus  brought  on, 
would Txcuse  the  killing.  But  what  is  the  truth  ot  this 
matter?  Does  the  evidence  show  that  the  position  of  the 
State,  or  that  the  position  of  the  defendant,  is  true  ?    This 


you  must  determine,  from  the  evidence.' 
To  each  part  of  this  charge  the  prison 


er  excepted. 


I  Chilton  &  Yancey,  for  the  prisoner. 
M,  A.  Baldavin,  Attorney-General,  contra. 

A.  J.  WALKER,  C.  J.— [May  14,  1861.]— By  section 
3585  of  the  Code  it  is  provided,  that,  in  all  trials  for  a 
capital  or  penitentiary  offense,  it  is  a  good  challenge  for 
cause  by  the  Stale,  that  the  juror  has  a  fixed  opinion 
against  capital  or  penitentiary  punishments.  The  statute 
makes  the  specified  cause  a  ground  of  challenge  by  the 
State  ;  but  it  cannot,  without  the  most  glaring  perversion 
of  its  meaning,  be  understood  as  making  it  a  ground  of 
challenge  by  the  prisoner,  or  as  imposing  upon  the  court 
the  duty,  ex  mero  motu,  of  setting  aside  a  juror  for  the 
cause  mentioned.  The  State  may,  of  may  not,  at  its 
election,  challenge  a  juror  for  the  cause  mentioned;  and 
the  prisoner  has  no  right  to  complain  that  the  State  for- 
bears to  exercise  the  right  of  challenge. 

[2.]  It  is  possible  that  some  portion  of  the  evidence  of 
Mrs.   Keys,  which  the  court  admitted  against  the  prison- 


54  SUPREME  COURT 


Point  v.  The  State. 


er's  objection,  did  not  serve  to  explain  either  the  expres- 
sion as  to  which  she  was  contradicted,  or  her  motives; 
but  it  is  certain  that  much  of  it  was  so  connected  with 
the  particular  expression,  as  to  render  the  part  so  con- 
nected competent  evidence.  This  being  the  case,  the 
court,  as  we  have  often  decided,  committed  no  reversible 
error  in  overruling  a  general  objection  to  the  entire  evi- 
dence. <  In  placing  our  decision,  however,  upon  this 
ground,  we  must  not  be  understood  as  affirming  that  any 
portion  of  the  evidence  was  illegal.  Upon  that  subject 
we  express  no  opinion. 

[3.]  The  counsel  for  the  prisoner,  though  confessedly 
able,  have  pointed  out  nothing  objectionable  in  the  charge 
of  the  court ;  and  if  there  be  any  error  in  it,  prejudicial 
to  the  prisoner,  a  careful  examination  has  not  enabled  us 
to  discover  it.  Construing  the  charge  iu  reference  to  the 
fact,  indisputably  established,  that  the  killing  was  perpe- 
trated with  a  deadly  weapon,  we  think  there  can  bo  no 
doubt  that  the  instruction  as  to  the  presumption  of  malice 
was  correct. — York's  case,  9  Metcalf,  93;  3  Green.  Ev. 
§14. 

Judgment  affirmed. 


POINT  m.  THE  STATE. 

[INDICTMENT  FOR  LARCENY  IN  DWELLING-HOUSE.] 

1.  Variance  in  name  of  owner  of  stolen  goods. — Where  the  indictment 
alleged  the  stolen  goods  to  he  the  property  of  Juli  Antoine,  while 
the  proof  showed  that  they  belonged  to  a  Frenchman,  whose  name 
was  Juli  Antoine  in  French,  and  who  was  ''generally  called  as  if 
his  name  was  spelled  Julee  Antoine, "—held,  that  there  was  no  vari- 
ance or  misnomer. 

2.  What  constitutes  larceny  in  dwelling-house. — Under  section  3170  of 
t^e  Code,  unlike  the  penal  code  of  1841,  (Clay's  Digest,  425,  \  55,) 


OF  ALABAMA.  55 


Point  v.  The  State. 


;i  person  may  be  convicted  of  larceny  in  a  dwelling-house,  although 
he  was  in  the  house,  at  the  time  of  the  theft,  by  the  invitation  of 
the  owner. 

From  the  City  Court  of  Mobile. 

Tried  before  the  Hon.  Henry  Chamberlain. 

The  indictment  in  this  case  charged,  that  the  prisoner, 
John  Point,  "feloniously  took  and  carried  away  from. a 
dwelling-house  a  coat,  of  the  value  of  ten  dollars,  and  a 
pair  of  pantaloons,  of  the  value  of  five  dollars,  the  per- 
sonal property  of  Juli  Antoine."  The  evidence  adduced 
on  the  trial,  and  the  charges  of  the  court  to  the  jury,  are 
thus  stated  in  the  bill  of  exceptions: 

"The  State  introduced  a  witness,  who  testified  as  fol- 
lows: 'In  October,  1860, about  a  week  before  the  finding 
of  the  indictment  in  this  case,  the  prisoner  came  to  him, 
with  a  cloth  coat,  a  pair  of  military  pantaloons,  and  a 
military  coat,  (the  two  last  being  identical  with  those  of 
the  first  sergeant  of  the  '  Guards  LaFayette,'  a  vol- 
unteer military  company  in  the  city  of  Mobile,  of 
which  company  witness  was  then  the  first  lieutenant,)  and 
wanted  to  sell  them  to  him,  and  told  him  that  they  had 
been  given  to  him  by  a  Mr.  Clebert,  of  New  Orleans. 
Witness  told  him,  that  he  did  not  wish  to  buy  them  ;  and 
the.  prisoner  then  appealed  to  him.  as  a  favor,  to  advance 
him  ten  dollars  on  the  goods,  and  take  and  sell  them  for 
hi  in.  Witness  gave  the  prisoner  the  money,  and  took 
the,  goods  to  sell;  but,  after  the  prisoner  left,  he  went  to 
'the  first  sergeant  of  said  company,  and  brought  him  to 
his  store;  and  said  sergeant  identified  and  claimed  said 
goods  as  his  own.  Said  sergeant's  name  is  Juli  Antoine, 
as  spelled  in  the  French  language  ;  he  is  a  Frenchman  by 
birth,  and  so  is  witness;  he  is  generally  called  as  if  his 
name  was  spelled  Julee  Antoine,  but  is  called  in  French 
Juli  Antoine,  as  pronounced  in  the  French  language.' 
The  .State  then  introduced  Juli  Antoine  as  a  witness,"wlio 
testified,  that  the  prisoner  came  to  him,  a  short  time 
before  the  finding  of  the  indictment,  said  that  he 
was    a    stranger     in     Mobile,    without  the    mcaii3    to 


56 SUPREME  COURT ; 

Point  v.  The  State. 

provide  a  home,  and  asked  his  hospitality  ;  that  he  told 
the  prisoner,  he  would  give  or  afford  him  a  lodging,  if  he 
would  occupy  the  same  bed  with  himself  in  the  house 
where  he  lodged;  that  the  prisoner  consented  to  this, 
and  slept  with  him  that  night,  (which  Was  Thursday,) 
and  the  thr^e  following  nights ;  that  the  said  stolen  goods 
were  in  his  trunk, in  his  said  bed-room;  that  they  were  in 
his  trunk  on  Sunday,  and  he  missed  them  the  next  day; 
that  he  found  them  at  the  store  of  the  witness  Fitchell,  aud 
was  positive  as  to  their  identity,  and  also  as  to  the  iden- 
tity of  the  prisoner  ;  that  the  cloth  coat  wa3  worth  about 
four  dollars,  the  military  coat  about  ten  dollars,  and  the 
pantaloons  about  five  dollars;  that  the  military  clothes 
were  a  part  of  his  sergeant's  uniform  ;  and  that  he  occu- 
pied and  slept  in  said  room,  and  had  done  so  for  several 
years.  Another  witness  corroborated  the  above  testi- 
mony. 

"The  court  charged  the  jury,  among  other  things, 
'that  there  was  no  misnomer  or  variance  in  Antoine's 
christian  name — that  it  could  be  spelled  Jule  as  well  as 
Juli.'  The  prisoner  excepted  to  this  charge,  and  request- 
ed the  cotirt  to  instruct  the  jury  as  follows:  'If  the  jury 
believe  that  the  prisoner,  by  the  permission  of  Juli  An- 
toine,  occupied  the  same  room  for  three  days,  aud,  at  the 
time  said  occupancy  commenced,  had  formed  no  inten- 
■  tion  to  commit  any  offense,  and  that  the  goods  were 
stolen  by  him  during  such  occupancy — then  he  would  not 
beguilty  as  charged  in  the  indictment,  but  would  be  guilty 
of  petit  larceuy.'  The  court  refused  to  give  this  charge,1 
and  the  prisoner  excepted." 

STONE,  J.— [March  2,  1861.]— We  are  not  able  to 
perceive  any  misnomer  in  the  present  case.  The  pro- 
nunciation of  the  two  names  is  substantially  the  same, 
and  we  think  the  doctrine  of  idem  sonans  must  be  held  to 
apply.'  -Petrie  v.  Wood  worth,  3  Caiues'  Rep.  219;  Aaron 
v.  The  State,  at  the  present  term  ;  Whar.  Am.  Cr.  Law, 
§  258,  and  authorities  cited. 

[2.]  The  question,  whether  or  not  the  alleged  larceny 


OF  ALABAMA.  57 


Point  v.  The  Slate. 


was  committed  iu  a  dwelling-house,  is  not  presented  by 
the  present  record.  We  are  not  informed  that  the  bill  of 
exceptions  contains  all  the  evidence;  and  that  which  is 
set  out,  tends  to  prove,  that  the  present  building  was  ap- 
plied to  some  of  the  uses  to  which  dwelling-houses  are 
applied.  Whether  a  room,  occupied  only  as  a  sleeping 
apartment,  is  a  "dwelling-house,"  within  section  3170  of 
the  Code,  we  need  not  inquire,  as  that  question  is  not 
presented  by  the  record  before  us. 

Section  3170  of  the  Code  is  a  clear  departure  from  our 
old  statute,  which  was  construed  in  Chambers'  case, 
6  Ala.  855.  '  Its  language  is,  "any  person,  who  commits 
larceny  in  any  dwelling-house,  store-house,"  &c. — Code, 
§  3170.  Under  this  statute,  it  is  manifest  that  a  person, 
who  is  in  a  dwelling-house  by  invitation,  may  therein 
commit  the  offense  which  it  was  designed  to  punish.  The 
provisions  of  this  section  are  very  much  like  those  of 
12  Anne,  (2  East's  Cr.  Law,  644,)  under  which  it  was 
ruled,  that  "the  property  stolen  must  be  such  as  is  usu- 
ally under  the  protection  of  the  house."  This  clearly 
indicate?)  what  the  legislature  deemed  the  aggravating 
feature  of  the  statute.  It  is  not  the  fact  that  a  dwelling- 
house  is  broken  or  entered,  which  constitutes  the  statu- 
tory crime.  The  sanctity  which  the  place  throws  over 
property  which  is  under  its  protection,  magnifies  the 
offense,  and  constitutes  it  a  felony,  irrespective  of  the 
value  of  the  property  stolen. — 2  East's  Cr.  Law,  644-5; 
Rex  v.  Taylor,  1  Russ.  &  Ry.  417. 

The  charge  asked  was  properly  refused,  and  the  judg- 
ment of  the  city  court  is  affirmed. 


».    * 


58 SUPREME  COURT 

Thompson  v.  The  Stale. 


THOMPSON  vs.  THE  STATE. 

[indictment  for  retailing  spirituous  liquors.] 

1.  Removal  of  licensed  retailer  from  county;  liability  of  agent. — The* 
mere  removal  of  a  licensed  retailer  to  another  county,  neither  ab- 
rogates his  license,  nor  renders  his  clerk  or  agent,  who  continues 
to  carry  on  his  business,  subject  to  an  indictment  under  the 
statute. 

From  the  City  Court  of  Mobile. 

Tried  before  the  Hon.  Alex.  McKinstry. 

The  indictment  in  this  case  was  in  the  form  prescribed 
by  section  1059  of  the  Code.  On  the  trial,  as  appears 
from  the  bill  of  exceptions,  the  State  proved,  that  the 
defendant  sold  spirituous  liquors,  at  the  bar  of  the  City 
Hotel  in  Mobile,  within  the  time  covered  by  the  indict- 
ment. The  defendant  then  proved,  that  the  bar  belonged 
to  one  Steadman,  who  had  removed  from  Mobile  to  Clai- 
borne; that  he  acted  simply  as  the  agent  of  Steadman, 
under  a  written  power  of  attorney,  and  carried  on  the 
business  in  Steadman's  name;  and  that  Steadman,  at  the 
time  of  his  removal  from  the  county,  and  while  the  de- 
fendant sold  liquors  at  his  bar,  had  a  regular  lk'.euse  from 
the  probate  judge  of  Mobile.  The  license  and  the  power 
of  attorney  were  both  produced  and  proved.  On  these 
facts,  the  court  charged  the  jury,  "that  a  man  could  not, 
by  means  of  a  clerk  or  agent,  carry  on  a  bar  in  one  coun- 
ty, while  he  lived  in  another  county;  that  the  privilege 
of  retailing  was  a  personal  trust:  that  the  party  licensed 
to  retail,  must  reside  at  the  place  of  his  busiuess,  and 
give  his  personal  supervision  over  his  bar,  although  an 
occasional  absence  was  allowable;  and  that  if  they  be- 
lieved [the  defendant  sold  spirituous  liquors  in  Mobile, 
and  that  Steadman  resided  in  another  county,  they  must 


OF  ALABAMA.  59 

Cawley  v.  The  State. 


find  the  defendant  guilty."     To  this  the  defendant  ex- 
cepted. 

William  Boyles,  and  J.  II.  Smoot,  for  the  defendant. 
M.  A.  Baldwin,  Attorney-General,  contra. 

R.  W.  WALKER,  J.— [March  2,  1861.]— The  charge 
of  the  court  asserts  the  proposition,  that  a  licensed  re- 
tailer must  reside  at  his  place  of  business,  and  give  his 
personal  supervision  over  his  bar;  and  that  if,  after  ob- 
taining the  license,  he  removes  to,  and  resides  in  another 
county,  his  license  is  therebjr  so  far  annulled,  that  it  af- 
fords no  protection  to  the  clerk  or  agent  employed  by 
him  to  conduct  the  business  after  his  removal.  We 
do  not  think  that  this  is  the  law.  Whether  a  license 
to  retail  can  be  properly  granted  to  one  who  does 
not,  at  the  time  it  is  issued,  reside  in  the  county  to 
which  the  license  refers,  is  a  question  not  now  presented, 
and  we  express  no  opinion  in  regard  to  it.  But,  where 
such  license  has  been  issued,  to  one  who  is  at  the  time  a 
resident  of  the  county,  we  do  not  think  it  can  be  asserted, 
as  matter  of  law,  that  the  mere  removal  of  the  party  to 
another  county,  abrogates  the  license,  or  destroys  the 
right  which  he  had  before  his  removal,  to  exercise  the 
privilege  conferred  by  the  license,  by  his  clerk  or  agent. 
See  Long  v.  State,  27  Ala.  36. 

Judgment  reversed,  and  cause  remanded. 


CAWLEY  vs.  THE  STATE. 

[indictment  for  lakceny.] 

1.  Regularity  of  proceedings  presumed,  against  irregularities  of  minute- 
entries  in  transcript. — The  appellate  court  will  not  presume  that  the 
prisoner  was  tried  and  sentenced  without  an  indictment,  simply 


60  SUPREME  COURT 

Cawley  v.  The  State. 

because  the  several  minute-entries,  showing  the  trial,  conviction 
and  sentence,  are  copied  into  the  transcript  before  the  indict- 
ment. 

2.  Joinder  of  offenses  in  indictment. — Two  offenses,  of  the  same  gen- 
eral nature,  and  belonging  to  the  same  family  of  crimes,  may  be 
charged,  in  different  counts,  in  the  same  indictment,  where  the 
mode  of  trial  and  the  nature  of  the  punishment  are  the  same. 

3.  Sufficiency  of  verdict. — A  general  verdict  of  guilty,  under  an  in- 
dictment charging  two  offenses,  properly  joined  in  different 
counts,  is  sufficient  to  authorize  a  judgment  and  sentence  for  the 
punishment  prescribed  for  one  of  the  offenses. 

From  the  Circuit  Court  of  Dallas. 
Tried  before  the  Hon.  Porter  King. 

The  indictment  in  this  case  contained  two  counts;  the 
first  charging  the  prisoner  with  larceny  from  "a  dwelling- 
house;"  and  the  second,  with  larceny  from  "a  shop." 
The  jury  returned  a  general  verdict  of  guilty,  and  the 
court  thereupon  sentenced  the  prisoner  to  confinement 
in  the  penitentiary  for  three  years.  Before  sentence  Avas 
pronounced,  the  prisoner  moved  in  arrest  of  judgment, 
"on  the  ground  that  there  is  a  general  verdict  on  two 
counts  for  separate  and  distinct  offenses."  The  court 
overruled  the  motion,  and  the  prisoner  excepted.  The 
several  minute-entries,  showing  the  trial,  verdict,  and 
judgment,  are  copied  into  the  transcript  before  the  in- 
dictment. 

Geo.  W.  Gayle,  for  the  prisoner. 

M.  A;  Baldwin,  Attorney-General,  contra. 

A.  J,  WALKER,  G.  J.— [March  1,  1881,]— The  first 
point  made  in  this  case  is,  that,  as  the  sentence  is  copied 
into  the  transcript  before  the  indictment,  it  must  be  in- 
ferred, that  the  sentence  of  the  court  preceded  the  find- 
ing of  *the  indictment;  and  that,  therefore,  the  accused 
was  tried  and  sentenced  without  an  indictment.  We 
cannot  sustain  this  point. 

[2-3.]  It  is  objected,  that  a  general  verdict  of  guilty 
is  not  sufficient*  where  distinct  offenses,  as  those  of  lar- 


OF  ALABAMA.  Gl 

Harrison  v.  The  State. 


ceny  from  a  dwelling-house  and  larceny  from  a  sh«p,  are 
alleged  in  different  counts.     After  an  elaborate  and  care- 
ful  review  of  the  authorities,  we  feel  safe  in  announcing 
the  conclusion,   that  "two   offenses,  committed   bv   the 
same  person,  may  be  included  in  the  same  indictment 
where  they  are  of  the  same  general    nature,  and  belong  * 
to-   the  same  family  of  crimes,  and   where  the  mode  of 
trial  and   nature  of  punishment  are  also  the  same-"  and 
also,  that  a  general  verdict  of  guilty,  where  such  offense 
are  joined,  is  no  ground  for  an  arrest  of  judgment,  or  of 
error,  whore  the  sentence  pronounced  does  not  impose  a 
greater  punishment  than  that  prescribed  for  one  offense 
Our  conclusion  is  fully  sustained  by  the  authorities  cited 
below—Johnson  v.  State,  29  Ala.  62;   1  Arch.  Crirn.  PI. 
9o  and  notes;    Whar.  Am.  Cr.  Law,  422;  TJ.  S.  v   Peter- 
son, 1  W.  &  M.  305;  State  v.  Ilaney,  2  K  C    Rep   390- 
1  Arch    Cr.  Law,  175-6;  Booth  v.  Common weath,  5  Met 
o3o;   Carlton  v.  Com.,  ib.  532;  Kane  v.  People,  8  Wend. 
203;  Mate  y.  Hooker,  17  Ver.   058;  State   v.  Coleman, 
o  Por.  32;  State  v.  Alose,  35  Ala.  421. 
Judgment  affirmed. 


HARRISON  vs.  THE  STATE. 

[IXOICTUEST  F0;{  DISTURBAXCK  OF  PUBLIC  WORSHIP.] 

I.   What  constitutes  offense.-To  constitute  the  statutory  offense  of 
dwturbxng  rehgtou.  worship,  (Code  J  3257.)  the  act  nustbe.il, 
y  or  nUenUonallydone;  it   is  „ot  suilicient  that  it  was  done 
lecklessly  or  carelessly. 

2\^ufrf-r7TCfrUnderan  indict™"t  for  disturbing  reli- 
cs worship,  the  defendant  has  a  right  to  adduce  evidence  of  his 
good  character ;  but,  until  he  has  done  so,  the  prosecution  cannot 
prove  1ns  bad  character  as  a  disturber  of  public  worship. 

3.  Endence  of  other  acts  of  di,turbance.-Kvidcnce  of  the  fact  that 
similar  acts  ot  disturbance  had  been  perpetrated  by  other  persons 


62  SUPREME  COURT 


Harrison  v.  The  State. 


in  the  same  church,  without  objection  or  notice  on  the  part  of  the 
members  of  the  congregation,  is  irrelevant  and  inadmissible. 

From  the  Circuit  Court  of  Lowndes. 
Tried  before  the  Hon.  John  K.  Henry. 

The  indictment  in  this  case  alleged,  that  the  defend- 
ant "willfully  interrupted  or  disturbed  an  assemblage  of 
people  met  for  religious  worship,  by  noise,  profane  dis- 
course, rude  and  iudeceut  behaviour,  or  by  fighting,  at 
or  near  the  place  of  worship."     On  the  trial,  fis  appears 
from   the  bill  of  exceptions,  the   State  proved  the  fact, 
that  the  congregation  ol  a  church  in  Lowndes  county, 
which  had  assembled  for  religious  worship,  on  a  particu- 
lar Sunday  night,  within  the  time  covered  by  the  indict- 
ment,  had    been  disturbed*"  by  the  loud  and    repeated 
slamming  of  the  door  by  some  person  who  was  outside; 
and  adduced  some  evidence  tending   to  show  that  the 
defendant  was  the  person  who  made  the  noise.     "The 
State  then  put  up  one  Davids  as  a  witness,  who  testified, 
that  he  was  not  at  the  church  on  the  night  in  question. 
The  defendant's  counsel  asked  said  witness,  without  ob- 
jection, if  he  had   not  often  seen  the  defendant  in  said 
church,  and  \f,  on  those  occasions,  the  defendant  had  not 
conducted  himself  in  an  orderly  and  quiet  manner;  and 
the  witness  answered  in  the  affirmative.     The  State  then 
offered  to  prove  by  said  witness,  what  the  defendant's 
general  character  was  in  that  respect.     The  defendant 
objected  to  this  question;  the  court  overruled  the  objec- 
tion, and  permitted   the  witness  to  be  examined  in   this 
respect;  and  the  defendant  excepted.     The  witness  an- 
swered, that  he  did  not  know  the  defendant's  general 
character." 

"The  defendant  proposed  to  prove  by  two  of  his  wit- 
nesses, that  they  had  often'  opened  the  door  of  said 
church,  looked  in,  and  then  shut  the  door,  without  any 
objection  being  made  by  any  body;"  also,  "that  it  had 
been  customary  for  many  vears,  for  persons  to  go  to  the 
door  of  said  church  during  religious  services,  open  it  and 


OF  ALABAMA.  63 


Harrison  v.  The  State, 


look  it,  without  going  in,  and  then  shut  it;  and  that  the 
members  of  the  congregation  of  said  church  made  no 
objection  to  this  conduct  on  the  part  of  the  witnesses." 
The  court  excluded  this  evidence,  and  the  defendant  ex- 
cepted. 

The  defendant  also  reserved  an  exception  to  the  charge 
of  the  court,  which  is  copied  in  the  opinion,  and,  there- 
fore, does  not  need  to  be  here  repeated. 

Baine  &  XkS.mith,  for  the  defendant. 

M.  A.  Baldwin,  Attorney-General,  contra. 

STONE,  J.— [Feb.  1G,  1861.]— The  defendant  was  in- 
dicted under  section  3257  of  the  Code,  which  declares, 
that  "any  person,  who  willfully  interrupts  or  disturbs 
ny  assemblage  of  people  met  for  religious  worship,  by 
icise,  profane  discourse,"  &c.,  is  guilty  of  a  misdemeanor. 
The  court  charged  the  jury,  "that,  if  the  defendant  dis- 
turbed the  congregation,  when  met  for,  or  engaged  in 
religious  worship,  either  willfully  or  recklessly,"  then  the 
case  would  be  within  the  provisions  of  the  statute. 

The  word  willful,  when  employed  in  penal  enactments, 
has  not  always  the  same  meaning.  In  this  statute,  it  is 
used  as  the  synonym  of  intentional,  or  designed—  pursuant 
ioinicntion  or  design,  without  lawful  excuse. — 1  Bish.  Cr.  Law, 
§  262;  State  v.  Abram,  10  Ala.  928;  also,  McManus  v. 
The  State,  30  Ala.  285.  The  word  reckless  means  "heed- 
less, careless,  rash,  indifferent  to  consequences."  Now, 
one  may  be  heedless,  rash,  or  indifferent  to  results,  with- 
out contemplating  or  intending  those  consequences.  As 
a  general  rule,  there  is  a  wide  difference  between  inten- 
tional acts,  and  those  results  which  are  the  consequence 
of  carelessness. 

While  the  question  of  the  intention  with  which  the  act 
of  disturbance  was  done,  was  one  of  inference  or  pre- 
sumption from  all  the  circumstances,  to  be  drawn  by  the 
jury,  we  do  not  think  the  statute  was  violated,  if  the  dis- 
turbance was  the  consequence  of  an  act  which  was  simply 
reckless,  or  careless.     To  be  guiltv,  the  defendant  must 


64  SUPREME  COURT 


Huttenstein  v.  The  State. 


have  gone  farther,  and  intentionally  created  the  noise. 
If  he  intentionally  did  an  act,  or  employed  language,  so 
near  to  the  place  where  he  knew  a  worshipping  assembly 
was  congregated,  as  that  he  must  have  known  that  such 
worshipping  assembly  would  be  disturbed  by  such  actor 
language,  then  such  act  would  be,  in  the  eyes  ot  the  law, 
a  willful  disturbance,  unless  some  lawful  excuse  existed 
therefor.  A  worshipper  in  a  church,  discovering  a  build- 
ing on  fire,  would  doubtless  be  justified  in  giving  the 
alarm,  although  iu  doing  so  he  might  disturb  the  as- 
sembly. Whether  the  noise  disturbed  the  assembly,  and, 
if  so,  whether  the  conduct  of  the  defendant  was  such  as 
to  show  that  he  intended  to  make  that  noise,  were  ques- 
tions for  the  jury,  under  appropriate  instructions  from 
the  court.— See  Ogletree  v.  The  State,  28  Ala.  693. 

[2.]  The  defendant  had  the  right  to  put  in  evidence 
his  good  character;  but,  until  he  did  so,  the  prosecution 
was  not  authorized  to  prove  his  bad  character  as  a  dis- 
turber of  religious  assemblies. — 3  Greenl.  Ev.  §  25. 

[3.]  Evidence  that  similar  acts  of  disturbance  had  been 
perpetrated  by  others  in  that  church,  and  had  not  been 
noticed,  was  irrelevant. 

Reversed  and  remanded. 


HUTTENSTEIN  vs.  THE  STATE. 

[indictment  for  keeping  restaurat  without  license.] 

1.  Sufficiency  of  indictment. — In  an  indictment  for  keeping  a  restaurat 
•without  license,  (Code,  \\  397,  399,)  it  is  not  necessary  to  allege 
that  the  defendant  was  engaged  in  the  business  of  keeping  a  restaurat ; 
it  is  sufficient  to  allege  that  he  "  did  keep  a  restaurat"  without 
license. 


OF  ALABAMA.  65 


Ward  v.  The  State. 


From  the  City  Court  of  Mobile. 

Tried  before  the  Hon.  Henry  Chamberlain. 

The  indictment  in  this  case  charged,  that  the  defend- 
ant 'did  keep  a  restaurat,  or  eating-house,  without  a 
license,  and  contrary  to  law."  The  defendant  moved  to 
quash  the  indictment,  and  also  demurred  to  it,  on  the 
ground  that  it  did  not  sufficiently  describe  the  offense. 
The  court  refused  to  quash,  and  overruled  the  demurrer; 
and  the  defendant  reserve  i  exceptions  to  its  decisions. 

Chandler  &  McKinstry,  ior  the  defendant. 
M.  A.  Baldwin,  Attorney-General,  contra. 

A.  J.  WALKER,  C.  J.— [March  1,  1861.]— Section 
399  of  the  Code  is  more  comprehensive  than  the  statutes 
under  which  the  indictments  in  the  cases  of  Petti  bone  v. 
State,  (19  Ala.  586,)  Eubanks  v.  State,  (17  Ala.  181,)  and 
Moore  v.  State,  (16  Ala.  411,)  were  framed.  The  section 
of  the  Code  referred  to  is  not  confined  to  the  engaging 
in  a  business  or  employment,  but  extends  to  the  doing  of 
any  act,  without;  first  obtaining  a  license,  for  which  a 
license  is  required  by  the  article  in  which  the  section  is 
fourd.  We  think  the  motion  to  quash,  and  the  demurrer 
in  this  case,  were  properly  overruled. 

Judgment  affirmed. 


WARD  vs.  THE  STATE. 

[indictment  for  gaming  with  slave.] 

1.  What  constitutes  offense  ;  general  charge  on  evidence. — To  constitute 
the  offense  of  playing  cards  with  a  slave  or  free  negro,  (Code, 
\  3250,)  a  game  must  be  entered  upon,  and  some  act  done  towards 
its  completion,  though  it  is  not  necessary  that  the  game  should  be 


66  SUPREME  COURT 

Ward  v.  The  State. 

played  out;  and  wfiere  the  only  evidence  before  the  jury  is,  that 
the  parties  were  seen  seated  on  opposite  sides  of  a  box,  each  with 
four  or  five  cards  in  his  hands,  while  the  rest  of  the  pack  lay  within 
their  reach,  with  the  top  card  turned  face  upwards,  and  that  they 
immediately  bunched  the  cards,  on  seeing  the  witness,  and  eaid 
that  the  slave  was  telling  the  defendant's  fortune, — a  charge  to  the 
jury,  instructing  them  that,  "  if  they  believed  the  evidence,  they 
must  find  the  defendant  guilty,"  is  an  invasion  of  their  province. 

From  the  Circuit  Court  of  Dale. 

Tried  before  the  Hon.  John  Gill  Shorter. 

TnE  indictment  in  this  case  charged,  "that  Redding 
Ward,  a  whit©  person,  did  play  at  cards  with  a  slave 
named  Cain,  the  property  of  Dempsey  Dowling."  "On 
the  trial,"  as  the  bill  of  exceptions  states,  "the  State 
introduced  a  witness,  who  testified,  in  substance,  that, 
within  twelve  months  next  before  the  finding  of  the 
indictment  iu  this  case,  he  went  to  a  mill  in  said  county, 
belonging  to  Mr.  Dempsey  Dowling,  and  there  found  the 
defendant  and  a  slave,  named  Cain,  who  belonged  to 
said  Dowling;  that  they  were  seated  at  a  box,  the  defen- 
dant on  one  side,  and  the  slave  on  the  opposite  vside ;  that 
the  box  had  a  handkerchief  spread  over  it;  that  he  saw 
four,  five,  or  more  cards  in  the  slave's  hands,  and  about 
the  same  number  in  the  defendant's  hands,  while  the 
balance  of  the  pack  was  lying  within  reach  of  them,  with 
a  face-card  on  top,  which  had  the  face  turned  upwards; 
that  he  saw  no  money,  or  anything  else,  at  stake;  that 
the  defendant  and  the  slave,  as  soon  as  they  saw  him, 
bunched  all  the  cards  together,  and  the  defendant  re- 
marked, 'that  the  slave  was  telling  his  fortune;'  that 
after  the  cards  were  so  bunched,  or  thrown  together,  the 
defendant  told  the  slave  to  mark  one  of  the  cards  on  the 
back,  and  he  could  tell  it  by  its  face;  that  the  slave 
marked  one  of  them  with  his  thumb-nail,  (the  defendant 
not  seeing  which  one  he  marked,)  aud,  after  shuffling 
them,  handed  the  cards  to  the  defendant;  and  that  the 
slave  then  told  the  defendant  to  mark  aud  shuffle  the 
cards  for  him  in  like  manner.    The  witness  further  stated, 


OF  ALABAMA.  67 


Ward  v.  The  State. 


that  this  sort  of  playing,  or  use  of  the  cards,  was  all  that 
he  saw  done  by  the  defendant  and  the  slave,  except  as 
above  stated ;  and  that  the  slave  professed  to  be  a  for- 
tune-teller, and  was  so  reputed  in  the  neighborhood. 
This  being  all  the  evidence,  the  court  charged  the  jury, 
'that,  if  they  believed  the  evidence,  they  must  find  the 
defendant  guilty,  and  assess  a  fine  against  him  of  not  less 
than  fifty  dollars;'  to  which  charge  the  defendant  ex- 
cepted." 

Pugii  &  Bullock,  for  the  prisoner. 

M.  A.  Baldwin,  Attorney-General,  contra. 

STONE,  J.— [Feb.  15,  1861.]— The  defendant  was  in- 
dicted under  section  3256  of  the  Code,  which  is  in  the 
following  language:  "Any  white  person,  who  plays  at 
cards  with  any  slave  or  free  negro,  must,  on  conviction, 
be  fined,"  &c.  We  think  that,  to  come  within  this  sec- 
tion, a  game  must  be  entered  upon,  and  some  act  done 
towards  its  completion.  Amusing  one's  self  with  cards, 
as  with  toys,  will  not  make  out  the  offense.  It  is  not 
necessary,  however,  that  the  game  shall  be  completely 
played  out.  If  the  game  be  in  part  entered  upon,  the 
statute  is  violated.  Coggins  v.  The  State,  7  Porter,  264; 
Holland  v.  The  State,  3  Por.  292;  Cochran  v.  The  State, 
30  Ala.  542;  Webster's  Dictionary,   "To  play." 

The  testimony  recited  in  the  bill  of  exceptions,  shows 
that  the  defendant  and  the  slave  were  seated  on  opposite 
sides  of  a  box,  each  holding  in  his  hand  four,  five,  or 
more  cards, — while  beside  them  lay  the  pack,  with  the 
top  card  face-upwards.  On  seeing  the  witness,  the  de- 
fendant and  the  slave  bunched  the  cards,  and  some  ex- 
pressions were  indulged  as  to  fortune-telling.  This  was 
all  the  evidence  tending  to  prove  the  defendant's  guilt. 
We  concede,  that  these  circumstances  may  have  been 
strong,  and  from  them  the  jury  may  have  inferred  that 
the  parties  had  seated  themselves  to  play  at  cards,  and 
had  so  far  entered  upon  the  game  as  to  deal  out  hands 
and  turn  up  a  trump;  yet,  in  order  to  establish  the  de- 


68  SUPREME  COURT 


Maull  v.  The  State. 


fendant's  guilt,  it  was  necessary  that  the  jury  should  find 
a  further  fact  or  facts  than  were  positively  sworn  to  by 
the  witness.  Such  further  fact  or  facts,  the  law,  unas- 
sisted by  a  jury,  could  not  infer.  We  think  the  court,  in 
its  charge,  invaded  the  province  of  the  jury. — Ogletree  v; 
The  State,  28  Ala.  700;  Scitz  v.  The  State,  23  Ala.  42  ; 
Morgan  v.  The  State,  33  Ala.  413;  1  Bish  Cr.  Law.  §  251. 
Reversed  and  remanded. 


MAULL  ps.  THE  STATE. 

[indictment  for  living  in  adulterv.] 

1.  Sufficiency  of  indictment. — An  indictment,  charging  that  a  man  and 
a  woman  ''did  live  in  a  state  of  adultery  or  fornication,"  but  not 
stating  that  they  thus  lived  with  each  other,  nor  otherwise  showing 
that  they  were  guilty  of  a  joint  offense,  is  dem  urrable  for  du- 
plicity. 

From  the  Circuit  Court  of  Jefferson,  on  change  of 
venue  from  Blount. 

Tried  before  the  Hon.  Wm,  S.  Mudd. 

The  indictment  in  this  case  charged,  "that  John  Maull, 
a  man,  and  Mary  Johnson,  a  woman,  did  live  in  a  state 
of  adultery  or  fornication,  against  the  peace  and  dignity 
of  the  State,"  &c.  The  prisoners  demurred  to  the  in- 
dictment, "  because  it  did  not  charge  that  they  lived  to- 
gether, or  with  each  other,  in  a  state  of  adultery  or 
fornication;"  but  the  court  overruled  the  demurrer. 

Watts,  Judge  &  Jackson,  for  the  prisoner,  cited  Moore 
v.  The  Commonwealth,  6  Metcalf,  243. 
M.  A.  Baldwin,  Attorney-General,  contra. 


OF  ALABAMA. 69 


McGnire  v.  The  State. 


A.J.  WALKER,  C.  J.— [Jan.  22,  1861.]— The  offenses 
charged  to  have  been  committed  by  the  defendants,  do 
not  appear  from  the  indictment  to  have  been  perpetrated 
by  any  joint  act;  but,  for  aught  disclosed,  may  have  been 
altogether  distinct,  neither  defendant  participating  in  the 
criminal  act  of  the  other.  For  this  reason,  the  indictment 
was  demurrable  for  duplicity. — Shaw  v.  State,  18  Ala. 
547. 

The  judgment  of  the  court  below  is  reversed,  and  the 
cause  remanded. 


McGUIKE  vs.  THE  STATE. 

[indictment  FOR  FORGERY.] 

1,  Oath  of  petit  jury. — Tf  the  jury,  in  a  criminal  case,  are  sworn 
"well  and  truly  to  try  the  issue  joined,"  this  is  a  substantial  com- 
pliance with  the  requisition  of  the  statute.  (Code,  \  347M,)  and  is 
sufficient. 

2,  Conclusion  of  indictment. — If  an  indictment  concludes  '•  against  the 
peace  and  dignity  of  the  State  of  Alabama,"  it  is  not  necessary 
that  each  count  in  it  should  so  conclude. 

8.  {Sufficiency  of  indictment  in  description  of  forged  instrument. — ''An 
instrument  of  writing,  purporting  to  be  an  order,  drawn  by  Sister 
Adeline,  on  George  Battiste,  for  nine  dollars," — is  a  sufficient  de- 
scrip'ion,  in  an  indictment,  of  the  instrument  alleged  to  have  been 
forged. 

4.  Sufficiency  of  indictment,  in  statement  of  time. — In  an  indictment 
under  the  Code,  it  is  not  necessary  to  state  the  time  when  an 
offense  was  committed,  or  to  allege  that  it  was  done  before  the 
finding  of  the  indictment. 

5.  Abstract  charge. — An  abstract  charge,  or  one  which  is  not  shown 
by  the  record  to  have  been  predicated  on  some  evidence  before  the 
jury,  is  properly  refused. 

6.  What  constitutes  forgery. — Under  an  indictment  for  forgery,  a  con- 
viction may  be  had  on  proof  that  the  prisoner,  with  intent  to  de- 


TO  SUPREME  COURT       __________ 

McGuire  v.  The  State. 

fraud,  uttered  and  published  as  true  a  forged  instrument,  knowing 
it  to  be  forged. 

From  the  City  Court  of  Mobile. 

Tried  before  the  Hon.  Alex.  McKinstry. 

The  indictment  in  this  case  was  in  these  words: 
"The  grand  jury  of  said  county  charge,  that,  before 
the  finding  of  this  indictment,  John  McGuire  forged  an 
instrument  of  writing,  purporting  to  be  an  order,  drawn 
by  Sister  Adeline,  on  George  Battiste,  for  nine  dollars, 
with  intent  to  defraud.  The  grand  jurors  further  charge, 
that  John  McGuire  forged  an  order  for  money,  in  words 
and  substance  as  follows:  'Mr.-  George  Battiste  will 
please  pay  to  Mr.  McGuire  nine  dollars,  by  order  of  Sister 
Adeline,' with  intent  to  defraud;  against  the  peace  and 
dignity  of  the  State  of  Alabama." 

The  defendant  demurred  to  the  indictment,  and  as- 
signed  the  following  grouuds  of  demurrer:  "To  the  first 
count,  because  it  does  not  set  out  the  tenor  or  substance 
of  the  instrument  charged  to  have  been  forged,  nor  does 
it  show  an}7  reason  for  not  so  setting  out  said  instrument; 
and  because  it  does  not  conclude,  'against  the  peace  and 
dignity  of  the  State  of  Alabama;'  and  to  the  second 
count,  because  it  does  not  allege  or  name  any  day  or  time 
when  the  said  oflense  was  commuted."  The  court  over- 
ruled the  demurrer,  and  the  defendant  excepted. 

"On  the  trial,"  as  the  bill  of  exceptions  states,  "there 
was  some  evidence  tending  to  show  that  the  forged  in- 
strument was  in  the  words  in  which  it  was  described  in 
the  indictment.  There  was  some  evidence,  also,  tending 
to  show  thajt  the  defendant  went  to  George  Battiste,  to 
get  the  money  of  John  Martin;  that  Battiste  told  him 
he  must  get  an  order  from  the  head  sister  of  the  'Sisters' 
Hospital,'  before  he  could  get  it;  that  the  defendant  went 
away,  and  came  back  with  such  an  order,  and 'an  order 
for  nine  dollars,  signed  'Sister  Adeline,'  and  got  the 
money  for  the  latter  order.  The  prosecuting  attorney 
asked  a  witness,  if  there  was  a  person  in  the  'Sisters' 


OF  ALABAMA.  71 


McGuire  v.  The  State. 


Hospital'  by  the  name  of 'Sister  Adeline.'  To  this  ques- 
tion the  defendant  objected,  and  reserved  an  exception  to 
the  overruling  of  his  objection." 

"The  defendant  asked  the  court  to  give  the  following 
charges:  '1.  If  the  jury  believe  that  Sister  Adeline  is  a 
fictitious  name,  they  cannot  find  the  defendant  guilty  of 
forgery.'  '2.  They  cannot  find  the  defendant  guilty,  un- 
less it  was  proved  that  he  wrote  the  order  in  Mobile 
countv.'  The  court  refused  these  charges,  and  the  de- 
fendant  excepted  to  their  refusal." 

The  judgment-entry  recites,  that  the  jury  were  sworn 
"well  and  truly  to  try  the  issue  joined;"  and  that  their 
verdict  was,  "guilty  of  forgery  in  the  second  degree." 

Ben  Lane  Posey,  for  the  prisoner. 

M.  A.  Baldwin,  Attorney-General,  contra. 

STONE,  J.— [Feb.  28,  1861.]— The  oath  administered 
to  the  jury  in  this  case  was  sufficient. — Crist  v.  The  State, 
21  Ala.  137;  Pile  v.  The  State,  5  Ala.  12. 

[2.]  The  indictment  concludes,  "against  the  pence  and 
dignity  of  the  State  of  Alabama,"  and  that  is  sufficient. 
Cons.  Ala.,  art.  5,  sec.  17. 

[3-4.]  Each  count  in  the  indictment  is  sufficient. 
Code,  §&  3158-65  ;  Code,  703. 

[5.]  There  is  no  evidence  in  the  record  that  Sister  Ade- 
line was  a  fictitious  person  ;  and  therefore,  the  first  charge 
asked  was  abstract,  so  far  as  we  can  discover.  There  was 
no  error  iu  refusing  it. 

[6.]  The  second  charge  asked,  should  not  have  been 
given.  It  demanded  an  acquittal,  if  the  evidence  failed 
to  prove  that  the  order  was  written  by  the  defendant  iu 
Mobile  county.  If  the  proof  showed  that  the  prisoner, 
in  Mobile  county,  uttered  and  published  the  order  as  true, 
knowing  it  to  be  forged,  and  with  intent  to  defraud,  the 
law  requires  that  he  should  be  adjudged  guilty  of  the 
forgery  of  the  instrument.  The  charge  restricted  the 
right    to   convict    within    too  narrow  bounds,   and  was 


72  SUPREME  COURT 

Johnson  v.  The  State. 

rightly  refused.— Code,  §  3165;  Thompson  v.  The  State, 
30  Ala.  28  ;  Bishop  v.  The  State,  ib.  34. 

Judgment  of  the  city  court  affirmed,   and  its  sentence 
to  be  executed. 


JOHNSON  vs.  THE  STATE. 

[indictment  for  willful  or  malicious  mischief.] 

1.  Constituents  of  offense. — Malice  is  a  necessary  ingredient  of  the 
offense  denounced  hy  section  3114  of  the  Code;  but,  under  section 
3115,  if  the  act  is  either  willful  or  malicious,  the  offense  is  com- 
plete 

2.  Whep  witness  may  give  opinion  as  to  value  of  animal. — Under  an  in- 
dictment for  willfully  or  maliciously  shooting  a  mule,  a  witness  who 
was  acquainted  with  the  mule  both  before  and  after  the  infliction 
of  the  injury,  but  who  has  no  skill  in  veterinary  or  medical  science, 
may  state  his  opinion  as  to  the  extent  of  d  image  caused  by  the 
wound 

From  the  Circuit  Court  of  Shelby. 
Tried  before  the  Hon.  Wm.  S.  Mudd. 

The  indictment  in  this  case  contained  two  counts;  the 
first  charging,  that  the  defendant,  Martin  Johnson,  "will- 
fully or  maliciously  injured  a  mule  of  some  value,  belong- 
ing to  William  Richards;"  and  the  second,  that  he  "will- 
fully or  maliciously  disfigured  a  mule,"  &c.  No  objection 
was  made  to  the  indictment;  and  the  only  plea  was  not 
guilty.  On  the  trial,  as  appears  from  the  bill  of  excep- 
tions, "the  State  introduced  proof  tending  to  show  that, 
within  six  months  before  the  finding  of  the  indictment, 
and  in  said  county,  the  mule  which  was  described  in  the 
indictment  as  the  property  of  William  Richards,  received 
a  gun-shot  wound,  which  was  inflicted  by  the  defendant;  " 
and  there  was  evidence  tending  to  show  that  said  mule 


OF  ALABAMA.  73 


Johnson  v.  The  State. 


was  the  property  of  said  Richards.  "One  McClellan,  a 
witness  for  the  State,  who  was  a  farmer,  testified,  that 
he  had  raised,  bought  and  sold  horses  and  mules,  and 
always  judged  for  himself,  and  did  his  own  trading  in 
such  things,  although  he  had  no  skill  in  veterinary 
science,  and  had  never  treated  medically  a  gun-shot 
wound;  that  he  was  well  acquainted  with  said  mule,  be- 
fore and  at  the  time  it  was  shot,  as  well  as  since  that 
time;  that  he  examined  the  wound  the  day  the  mule  was 
shot,  when  it  was  fresh,  and  had  examined  it  after  it 
healed;  that  the  wound  was  in  the  shoulder,  and  the 
shoulder  had  thereby  become  enlarged;  that  the  mule 
was  worth  one  hundred  and  fifty  dollars  before  it  was  shot, 
and  that,  in  his  opinion,  the  damage  or  injury  done  to  the 
mule  by  the  wound  was  fifty  dollars.  The  defendant  ob- 
jected to  the  witness  giving  his  opinion,  as  to  the  damage 
or  injury  done  to  the  mule  by  the  said  wound;  but  the 
court  overruled  the  objection,  and  permitted  the  evidence 
to  go  to  the  jury;  to  which  the  defendant  excepted." 
The  court  charged  the  jury,  among  other  things,  "  that  it 
was  not  necessary  for  the  State  to  prove,  that  the  defend- 
ant, if  he  shot  the  mule,  was  actuated  by  malice,  either 
towards  the*  mule,  or  towards  its  owner;"  to  which  charge 
also,  the  defendant  reserved  an  exception.  The  several 
rulings  of  the  court  to  which  exceptions  were  reserved, 
are  now  assigned  as  error. 

IIkflix,  Martin  &  Forney,  for  the  defendant,  cited 
the  following  cases:  The  State  v.  Pierce,  7  Ala.  728; 
M.  &  \V.  P.  Railroad  Co.  v.  Varner,  19  Ala.  185;  Nor- 
man v.  Wells,  17  Wendell,  136. 

M.  A.  Baldwin,  Attorney-General,  contra. 

A.  J.  WALKER,  C.  J.— [July  18, 1861.]— The  statute 
under  which  the  defendant  was  indicted,  is  in  the  follow- 
ing words:  "Any  person,  who  willfully  or  maliciously 
injures  or  disfigures  any  horse,  mare,  gelding,  colt,  filly, 
ass,  or  mule,  the  property  of  another,  must,  on  conviction, 
be  fined  not  less  than  five  times  the  amount  of  the  injury 
6 


74 SUPREME  COURT 

Johnson  v.  The  State. 

done,  and  may  be  imprisoned  not  more  than  six  months." 
Code,  §  ?115.  The  indictment  is  not  framed  under  sec- 
tion 3114,  which  prescribes  the  punishment  of  a  person 
"who  unlawfully  and  maliciously  kills  or  disables  any  ani- 
mal belonging  to  another,  or  unlawfully  and  maliciously 
injures  or  destroys  any  article  or  commodity  of  value, 
the  property  of  another."— Code,  §  3114.  An  obvious 
difference  between  the  two  sections  is,  that  under  the 
former,  willfulness  or  malice,  characterizing  the  specified 
act,  is  sufficient  to  constitute  the  offense;  while  under 
the  latter,  unlawfulness  and  malice  are  necessary  ingre- 
dients of  the  offense.  A  like  difference  exist3,  between 
the  statute  under  which  the  indictment  in  this  case  was 
framed,  and  the  statute  which  was  construed  in  State  v. 
Pierce,  7  Ala.  728.-Clay's  Digest,  417,  §  5.  This  last-named 
statute  expressly  required,  that  the  act  should  be  unlaw- 
ful, willful,  and  malicious;  audit  was  in  reference  to  that 
statute,  that  the  court,  in  arguing  the  question  before  it. 
declared  malice  against  the  owner  of  the  animal  to  be  an 
essential  element  of  the  offense.  That  dictum,  made  in 
aroruins:  the  construction  of  such  a  statute,  is  entitled  to 
no  influence  upon  the  question  presented  in  this  case. 
Under  the  statute  now  under  consideration,  the  willful 
performance  of  the  specified  acts,  as  well  as  the  malicious 
performance  of  them,  constitutes  the  offense.  It  was, 
therefore,  proper  for  the  court  to  charge  the  jury, _  that 
proof  of  malice  towards  the  mule  or  its  owner  was  not 
indispensable. 

[2.]  We  think  the  court  below  committed  no  error,  in 
permitting  the  State  to  prove  that  the  damage  or  injury 
done  to  the  mule  was  fifty  dollars.  Considering  this  evi- 
dence in  connection  with  the  evidence  which  precedes  it, 
we  understand  it  to  amount  to  nothing  more  than  the 
expression  of  the  opinion  of  the  witness,  that  the  value 
of  the  mule  was  diminished  fifty  dollars  by  the  injury 
done  to  it.  It  is  but  a  comparison  of  the  value  before 
and  after  the  injury;  and  such  a  comparison  it  was  cer- 
tainly competent  for  the  witness  to  make. — Ward  v. 
Reynolds,  32  Ala.  385.     We  do  not   think  the  question 


OF  ALABAMA.  75 


Schwartz  v.  The  State. 


decided  in  the  M.  &  W.  R.  R.  Co.  v.  Varner,  (19  Ala.  185,) 
at  all  analogous  to  that  presented  in  this  case. 
Affirmed. 


SCHWARTZ  vs.  THE  STATE. 

[INDICTMENT    FOK    PUBLIC    NUiSANCE.] 

1.  Sufficiency  of  indictment,— An  indictment  under  the  act  of  1858, 
"  to  prevent  nuisances  and  illegal  trafficking  with  slaves,"  (g< 
Acts  1857-8,  p.  285,)  which  charges  that  the  defendant  '•  kept,  or 
was  engaged  in  the  keeping  of,  a  puhlic  nuisance,  by  having  per- 
mitted slaves,  or  free  persons  of  color,  habitually  to  visit,  assemble, 
stop  at,  or  loiter  about,  the  house  or  premises  kept  or  occupied  by 
him,  ' — is  sufficient,  being  in  the  form  authorized  by  the  third 
section  of  the  act,  and  is  not  violative  of  any  constitutional  pro- 
vision. 

2.  What  constitutes  offense, — To  authorize  a  conviction  under  this  stat- 
ute, although  it  is  necessary  that  three  respectable  witn  sses  for 
the  State  shall  testify  that  the  general  reputation  of  the  defen'd- 
dant,  or  that  of  his  house,  "  as  to  trading  or  traffickir.  :  itle 
with  slaves,"  is  bad,  it  is  not  necessary  that  the  jury  should  find 
that  fact  to  be  proved;  nor  is  it  necessary  for  tbe  State  to  prove 
the  defendant's  permission  or  consent  that  slaves,  &c,  shoi»ld  viBit 
or  loiter  about  his  premises ;  nor  it  is  necessary  that  the  defendant 
should  be  a  licensed  retailer. 

From  the  Circuit  Court  of  Montgomery. 
Tried  before  the  lion.  S.  D.  Hale. 

Tub  indictment  in  this  case  was  founded  upon  the  act 
of  February  6,  1858,  entitled  "An  act  to  prevent  nui- 
sances and  illegal  trafficking  with  slaves,"  which  is  iji 
the  following  words: 

"Section  1.  Be  it  enacted  "  &c,  "That  the  keeping  of 
every  house  in  this  State,  where  spirituous  liquors  are 
sold,  retailed,  or  given  away,  and  which  slaves  or 


76 SUPREME  COURT ■_ 

Schwartz  v.  The  State. 

persons  of  color  habitually  visit,  assemble,  or  stop  at,  or 
loiter  about,  is  hereby  declared  to  be  a  public  nuisance; 
provided,  the  general  reputation  of  such  house,  or  of  the 
keepers  thereof,  as  to  trading  or  trafficking  with  slaves,  is 
bad. 

"Section  2.  J5e.it  further  enacted,  That  every  person 
■who  keeps,  or  engages  in  the  keeping  of  any  such  house, 
ahall  be  liable  to  indictment  therefor,  and,  upon  convic- 
tion thereof,  shall  be  fined  for  the  first  offense  in  any  sum 
the  jury  trying  the  case  may  assess,  not  less  than  fifty- 
dollars,  nor  mo/e  than  two  Jiundred  dollars;  and  for  the 
second,  and  every  subsequent  offense,  shall  be  fined  not 
less  than  two  hundred  dollars,  nor  more  than  one  thou- 
sand dollars,  and  be  imprisoned  in  the  common  jail  of 
the  county,  not  less  than  ten  days,  nor  more  than  six 
months,  one  or  both,  in  the  discretion  of  the  jury  trying 
the  offense;  provided,  the  person  so  convicted  the  second 
time  for  the  same  offeuse,  shall  not  have  license  granted 
hi ni  or  her  again  in  the  same  county. 

"Section  8  Be  it  further  enacted,  That  in  all  prosecu- 
tions under  this  act,  it  shall  be  sufficient  for  the  indict- 
ment to  state,  that  the  defendant,  before  the  finding  of 
the  indictment,  kept,  or  was  engaged  in  the  keeping  of  a 
jmMic  nuisance,  by  having  permitted  slaves,  or  free  per- 
a> ms  of  color,  habitually  to  visit,  assemble,  or  stop  at,  or 
loiter  about,  the  house  or  premises  kept  or  occupied  by 
the  defendant. 

"Section  4.  Be  it  farther  enacted,  That  before  any  con- 
viction can  be  had  in  any  prosecution  under  this  act,  it 
shall  be  incumbent  on  the  State  to  prove,  by  three  or 
more  respectable  witnesses,  that  the  general  reputation  of 
the  house,  or  of  the  keeper  thereof,  for  the  keeping  of 
which  the  indictment  is  found,  as  to  trading  or  trafficking 
illegally  with  slaves,  is  bad." — Session  Acts,  1857-8, 
p.  285. 

The  indictment  charged,  "that  Peter  Schwartz,  before 
the  finding  of  this  indictment,  kept,  or  was  engaged  in 
the  keeping  of  a  public  nuisance,  by  having  permitted 
slaves,  or  free  persons  of  color,  habitually  to  visit,  assem- 


OF  ALABAMA.  77 


Schwartz  v.  The  State. 


ble,  stop  at,  or  loiter  about,  the  house  or  premises  kept 
or  occupied  by  said  defendant;  against  the  peace  and 
dignity,"  &c.  After  conviction,  the  defendant  moved  in 
arrest  of  judgment,  "for  matters  apparent  upon  the  in- 
dictment;" but  his  motion  was  overruled. 

"On  the  trial,"  as  the  bill  of  exceptions  states,  "the 
State  gave  in  evidence  that  the  defendant  kept  a  grocery- 
store  in  the  city  of  Montgomery,  on  the  1st  April,  1858, 
and  had  been  keeping  it  since  the  6th  February,  1858 ; 
and  that  gangs  of  negroes,  from  three  to  twenty  in  iiimi- 
ber,  were  frequently  seen,  between  those  periods,  in  front 
of  his  store,  and  on  the  side-walk  at  the  corner  of  the 
street  where  his  shop  was.  One  witness  testified  to  the 
fact,  that  liquor  was  kept  in  the  store;  but  he  could  not 
remember  having  seen  any  sold  there,  previous  to  the 
finding  of  the  indictment.  Another  witness  testified, 
that  he  saw  the  defendant  sell  bottles  of  brandy  in  Janu- 
ary, 1858,  but  never  since.  The  State  also  gave  in  evi- 
dence, that  the  reputation  of  the  house,  and  of  the  de- 
fendant, for  trading  with  slaves,  was  bad;  five  witnesses 
testified  to  that  fact.  The  defendant  then  gave  in  evi- 
dence, that  he  kept  a  grocery  for  the  sale  of  family  gro- 
ceries: and  several  witnesses  testified,  that  they  had 
bought  all  their  family  supplies  from  him  during  that 
period,  and  visited  his  store  to  do  so,  and  never  sa\v  a 
drop  of  liquor  sold  by  him  during  that  time.  Five  wit- 
nesses testified,  that  his  (?)  general  character  of  his  house, 
as  to  trading  with  slaves,  was  good ;  and  one  witness 
testified,  that  he  had  twice  seen  the  defendant  try  to 
drive  the  negroes  away  from  the  corner  where  his  store 
was,  and  had  heard  him  say  to  them,  at  the  same  time, 
that  they  had  no  business  there.  One  witness  for  the 
defendant  testified,  that  he  was  a  near  neighbor  of  the 
defendant,  and  had  been  living  on  the  square  adjoining 
the  defendant  for  a  long  time,  both  before  and  after  the 
time  charged  in  the  indictment,  and  was  well  acquainted 
with  him  and  his  neighbors,  and  knew  his  general  char- 
acter; but  he  could  not  say  that  he  knew  his  general 
character,  or  that  of  his  house,  for  trading  or  trafficking 


78 SUPREME  COURT 

Schwartz  v.  The  State. 

illegally  with  slaves;  but  he  had  heard  the  neighbors 
generally  repeatedly  speak  of  the  defendant,  and  never 
heard  a  word  said  by  any  of  them  about  his  trading  or  traf- 
ficking with  slaves  in  any  way.  On  molion  of  the  State, 
the  court  excluded  the  words'"  which  are  italicised;  "and 
the  defendant  excepted.  There  was  no  evidence  whether 
the  negroes  seen  at  or  near  the  defendant's  shop,  as  above 
stated,  were  slaves  or  free  persons  of  color  ;  nor  were 
their  names  given,  or  any  description  or  identification  of 
them. 

"This  being  all  the  evidence,  the  court  charged  the 
jury,  that  if  they  believed,  from  the  evidence,  that  the 
defendant  had  a  house  where  liquor  was  sold;  and  that 
gangs  of  negroes  had  habitually  loitered  about  his  prem- 
ises ;  and  that  all  the  loitering  about  his  premises  con- 
sisted in  negroes  being  on  the  public  side-walk  in  the 
street,  and  on  the  corner  of  the  street,  where  the  defen- 
dant kept  his  store ;  and  that  the  general  reputation  of 
the  defendant  and  his  house,  between  the  6th  February, 
1858,  and  the  finding  of  the  indictment,  for  trading  with 
slaves,  was  bad,  and  had  been  testified  to  by  three  res- 
pectable witnesses, — then  he  was  guilty  under  the  indict- 
ment. 

"The  court  further  charged  the  jury,  that  if  they  be- 
lieved, from  the  evidence,  that  gangs  of  negroes,  from 
three  to  twenty  in  number,  had  been  in  the  habit  of 
standing  about  on  the  side-walk  in  the  street,  and  at  the 
corner  of  the  street,  between  the  6th  February,  1858,  and 
the  finding  of  the  indictment, — then  this  was  such  a 
loitering  about  the  defendant's  premises  as  was  contem- 
plated by  the  statute,  even  if  it  had  not  been  established 
by  evidence  that  it  was  done  by  his  consent  or  permis- 
sion. 

"The  defendant  excepted  to  each  of  these  charges,  and 
requested  the  court  to  instruct  the  jury,  (1st,)  'that  unless 
the  negroes  who  were  in  the  habit  of  standing  on  the 
side-walk  at  the  corner  of  the  street,  where  the  defen- 
dant's store  was,  did  so  by  the  consent,  permission,  or 
approbation,  of    the   defendant,    they    cannot   find    him 


OF  ALABAMA.  79 


Schwartz  v.  The  State. 


guilty;'  (2d,)  'that  if  the  only  evidence  before  them,  to 
establish  that  the  general  character  of  the  defendant  or 
his  house  was.  bad,  was,  that  it  was  bad  as  to  trading  with 
slaves,  this  is  not  sufficient,  unless  they  find  and  believe, 
from  the  evidence,  that  he  had  traded  illegally  with 
slaves.'  The  court  refused  both  of  these  charges,  and  the 
defendant  excepted  to  their  refusal." 

Jno.  A.  Elmore,  for  the  prisoner. 

M.  A.  Baldwin,  Attorney-General,  contra. 

STONE,  J.— [April  1,  1861.]— The  statute  which  we 
arc  to  construe  in  this  case,  had  for  its  object  the  correc- 
tion of  an  evil  which  exists  in  every  slaveholding  commu- 
nity, namely,  illegal  traffick  with  slaves.  The  arts  and 
devices  of  petty  traders  have  generally  been  such  as  to 
elude  our  penal  enactments;  and,  consequent!}7,  slaves 
have  continued  to  be  demoralized,  by  having  held  out  to 
them  incentives  to  theft,  that  they  may  thereby  procure 
the  means  of  gratifying  a  corrupted  and  corrupting  ap- 
petite. The  object  of  the  present  enactment  was,  to 
reach  and  prevent  the  offense,  which  can  rarely  be  proved 
because  of  its  secrec.37,  by  seizing  upon  and  punishing 
another  offense  against  the  good  government  and  well- 
being  of  slaves,  which  usually  attends  upon  and  evidences 
the  more  grievous  offense. 

The  statute,  though  well  conceived  to  carry  out  the 
object  of  the  legislature,  is,  nevertheless,  not  expressed 
with  such  precision  as  to  leave  no  doubt  or  difficulty  in 
its  exposition. — See  i'amph.  Acts,  1857-8,  p.  285.  The 
first,  third,  and  fourth  sections,  are  those  which  create  the 
difficulty.  The  first  section  defines  the  offense  ;  the  third 
relates  to  the  indictment;  and  the  fourth,  to  the  proof. 
The  language  of  the  several  sections  is  variant.  Section  1 
declares,  "that  the  keeping  of  every  house  in  this  State, 
where  spirituous  liquors  are  sold,  retailed,  or  given  away, 
and  which  slaves  or  free  persons  persons  of  color  habitu- 
ally visit,  assemble,  or  stop  at,  or  loiter  about,  is  hereby 
declared  to  be  a  public  nuisance;  provided,  the  general 


80 SUPREME  COURT  

Schwarte  v.  The  State. 

reputation  of  such  house,  or  of  the  keepers  thereof,  as  to 
trading  or  trafficking  with  slaves,  is  bad."  Section  3 
provides,  "that,  in  all  prosecutions  under  this  act,  it  shall 
be  sufficient  for  the  indictment  to  state,  that  the  defen- 
dant, before  the  finding  of  the  indictment,  kept,  or  was 
engaged  in  the  keeping  of  a  public  nuisance,  by  having 
permitted  slaves  or  free  "persons  of  color  habitually  to 
visit,  assemble,  or  stop  at,  or  loiter  about,  the  house  or 
premises  kept  or  occupied  by  the  defendant." 

The  indictment  in  this  case  pursues  section  3j  and  con- 
tains nothing  beyond  its  specified  requirements.  It  is 
urged  for  the  defendant,  that'  this  indictment  does  not 
conform  to  the  bill  of  rights,  because  it  fails  to  set  forth 
"the  nature  and  cause  of  the  accusation." — Bill  of  rights, 
§  10;  Code,  p.  30.  A  further  objection  urged  against  it 
is,  that  it  is  not  framed  according  to  the  forms  which  the 
law  has  prescribed.  We  have  duly  considered  these  ob- 
jections, and  it  is  our  opinion,  that  they  are  not  well  taken. 

This  statute  is  a  public  one,  and  all  men  are  charged 
with  a  knowledge  of  its  contents. — Erwin  v.  Hamner, 
27  Ala.  29G.  All  men,  in  reading  an  indictment  framed 
under  the  third  section,  are  reasonably  informed  that  the 
indictment  charges  the  offense  denounced  by  the  first 
section.  In  fact,  it  may  admit  of  question,  if  such  is  not 
the  result  of  the  legal  intendment,  which  presumes  that 
every  one  knows  the  law.  Be  this  as  it  may,  enough  is 
stated  in  the  indictment  to  inform  the  defendant  of  the 
nature  and  cause  of  the  accusation.  The  non-professional 
reader  will  be  better  informed  of  the  nature  and  cause  of 
the  accusation  by  the  simple  statement  found  in  this  re- 
cord, than  he  would  be  by  the  technical  verbosity  which 
prevailed  a  century  ago. 

Nor  is  this  a  new  question  in  this  court.  Several  of  the 
Code  forms  of  indictments  are  defective,  under  the  argu- 
ment made  in  this  case ;  for  they  omit  to  aver  many  facts, 
which  are  necessary  to  be  proved  to  insure  a  conviction. 
Many  of  them  aver  facts  disjunctively,  and  all  of  them 
omit  all  mention  of  the  county  in  which  the  offense  was 
committed.— See  Code,  §§  3244,  3506,  3507;  also,  forms 


OF  ALABAMA.  81 


Schwartz  v.  The  State. 


Nos.  7,  26,  29,  31,  33,  66,  67,  68,  71,  74,  &c.  These  forms 
we  have  invariably  held  sufficient. — See  the  authorities 
collected,  Shep.  Dig.  71-2.  In  Noles  v.  The  State, 
(24  Ala.  672.)  our  predecessors  ruled,  that  the  constitu- 
tion does  not  inhibit  the  legislature  from  introducing 
forms  of  indictment,  variant  from  those  of  the  common 
law.  Thej  further  ruled^that,  if  the  form  of  indictment 
prescribed  by  the  statute  contain  such  an  accusation  at 
the  suit  of  the  State,  found  by  a  grand  jury,  as  furnishes 
to  the  accused  reasonable  information  of  what  he  is  called 
on  to  answer,  by. setting  forth  the  constituent  elements  of 
the  offense,  it  will  be  sufficient,  although  it  may  omit 
man}'  averments  that  were  necessary  at  common  law. 
The  indictment  in  this  case  is  in  the  form  which  the  law 
has  prescribed,  and,  under  the  rules  above  declared,  it  is 
sufficient. 

The  fourth  section  of  the  act  under  which  the  defen- 
dant was  tried,  is  in  the  following  language:  "Before 
any  conviction  can  be  had  in  any  prosecution  under  this 
act,  it  shall  be  incumbent  on  the  State  to  prove,  by  three 
or  more  respectable  witnesses,  that  the  general  reputation 
of  the  house,  or  the  keeper  thereof,  for  the  keeping  of 
which  the  indictment  is  found,  as  to  trading  or  traf- 
ficking illegally  with  slaves,  is  bad."  On  a  compari- 
son of  the  sections  1,  3,  and  4  of  this  statute,  it  will 
be  discovered  that  each  is  different  from  the  others". 
Section  1  declares,  that  certain  elements  shall  consti- 
tute a  public  nuisance;  section  3  relates  to  the  indict- 
ment; and  section  4  declares,  that  certain  proof  shall 
be  made  before  a  conviction  can  be  had.  Section  3 
omits  all  mention  of  many  of  the  ingredients  of  the 
offense,  as  found  in  section  1 ;  while  section  4,  in  speak- 
ing of  the  proof  to  be  made,  contains  the  word  illegally, 
which  is  not  found  in  section  1.  Now,  we  think  these 
difficulties  vanish,  when  we  consider  the  purpose  for 
which  each  separate  section  appears  to  have  been  inserted. 
Section  1  defines  the  offense,  and  its  constituent  ele- 
ments: section  3  declares  what  shall  be  a  sufficient  in- 
dictment; and  section  4  requires,  that  certain  proof  shall 


82 SUPREME  COURT 

Schwartz  v.  The  State. 

be  made,  preliminary  to  a  conviction.  The  first  declares 
what  shall  be  found  by  the  jury;  the  third,  what  shall 
be  alleged  by  the  pleader;  and  the  fourth,  what  shall  be 
deposed  to  by  three  or  more  respectable  witnesses.  To 
allow  section  4,  which  relates  to  the  testimony,  to  enlarge 
the  constituent  elements  of  the  offense  which  section  1 
defines,  would  seem  to  be  as  illogical,  as  to  allow  sec- 
tion 3,  which  defines  the  indictment,  to  restrict  those 
constituent  elements. 

If  it  be  asked,  why  require  the  witnesses  to  testify  that 
the  character  for  trafficking  illegally  with  slaves  is  bad,  if 
that  be  not  one  of  the  facta  to  be  found  by  the  jury; — 
we  answer,  it  was  certainly  within  the  power  of  the 
legislature  to  make  such  a  rule,  and  it  is  not  for  us  to 
question  the  exercise- of  that  power.  The  offense  is  com- 
plete, under  section  1,  \f  on\y  free  persons  of  color  habitu- 
ally visit,  assemble,  or  stop  at,  or  loiter  about,  a  house  of 
the  kind  mentioned  in  the  statute,  provided  the  general 
reputation  of  such  house  or  the  keeper  thereof,  as  to 
trading  or  trafficking  with  slaves,  is  bad.  It  is  not  com- 
plete, if  slaves  habitually  visit,  assemble,  &c,  at  such 
house,  unless  the  reputation  of  the  house  or  its  keeper,  for 
trading  or  trafficking  with  slaves,  is  bad. 

In  Jordan  v.  Oweu,  (27  Ala.  152,)  we  decided,  that  a 
plaintiff',  testifying  in  his  own  case  to  an  indebtedness  to 
nim,  must  go  farther,  and  swear  that  the  debt  is  unpaid. 
Yet  no  one  would  contend,  that,  in  such  case,  the  charge 
of  the  court  should  authorize  that  body  to  find  against 
the  plaintiff,  if  he  had  not  satisfied  them  that  the  debt 
was  not  paid.  The  proof,  in  such  case,  getting  before  the 
jury,  if  the  plaintiff  make  out  a  prima-facie  case  of  indebt- 
edness, the  onus  of  showing' a  payment  would,  in  the  case 
supposed,  as  in  all  other  cases,  rest  on  the  defendant* 
JEi  incumbit  jirobatio,  qui dicit.  The  testimony  in  such  case, 
to  be  legal,  must  contain  positive  and  negative  aver- 
ments; while  the  finding  of  the  jury  need  only  respond 
affirmatively. 

A  fair  illustration  of  the  argument  we  are  making, 
may  be  seen  in  the  following  supposed  case.     It-is  sai^ 


OF  ALABAMA.  83 


Schwartz  v.  The  State. 


to  be  a  rule  of  the  common  law,  not  to  convict  of  mur- 
der, unless  the  dead  bodyjias  been  found.  Now,  suppose 
an  act  of  the  legislature  should  declare,  that  no  convic- 
tion for  murder  should  be  had,  unless  three  respectable 
witnesses  should  testify  that  they  had  seen  the  dead  body. 
On  a  trial,  three  respectable  witnesses  testify  as  the  stat- 
ute requires;  but  the  juiy  are  convinced  that  one  of  the 
witnesses  is  mistaken,  and  that  in  fact  he  never  saw  the 
dead  body.  Still  the  jury  are  convinced,  beyond  reason- 
able doubt,  that  the  prisoner  had  committed  the  offense 
charged.  Would  any  one  contend,  that,  under  the  influ- 
ence of  such  supposed  statute,  the  prisoner  should  be 
acquitted?  So,  uAder  this  statute,  we  hold,  that  section 
4  is  not  iutroductive  df.  any  new  fact  to  be  found  by  the 
jury;  but  that,  out  of  abundant  caution,  its  purpose  was 
to  screen  the  defendant  from  conviction,  save  on  the  tes- 
timony of  three  or  more  respectable  witnesses  on  the 
question  of  character. 

It  may  be  questioned,  whether  there  can  be  such  thing 
as  general  bad  character  or  reputation  for  trading  or  traf- 
ficking with  slaves,  unless  such  trading  or  trafficking  was 
illegal ;  in  other  words,  that  a  trader,  who  dealt  with 
slaves  legally,  coujd  not  thereby  acquire  a  bad  reputation. 
In  answer  to  this  we  say,  the  legislature  have  inserted  the 
word  illegally,  in  defining  the  measure  of  proof,  and  we 
prefer  not  to  say  they  had  no  object  in  doing  so.  We 
hold,  then,  that  the  -testimony  must  conform  to  section 
four,  but  the  finding  need  only  respond  to  the  require- 
ments of  section  one. 

The  bill  of  exceptions  in  this  case  purports  to  set  out 
'  all  the  evidence.  Five  wituesses  testified,  that  the  gen- 
eral reputation  of  the  defendant,  foiMrading  or  trafficking 
with  slaves,  was  bad ;  but  no  witness  employed  the  word 
ilia/ally.  In  the  first  charge  given  to  the  jury,  the  circuit 
court,  on  this  point,  said,  in  effect,  that  if  three  respecta- 
ble witnesses  had  testified  that  the  defendant's  general 
reputation  for  trading  or  trafficking  with  slaves  wag  bad, 
this  would  meet  the  requirements  oi  the  law.  Thi«  was 
an  error. 


84 SUPREME  COURT        

Smith  et  al.  v.  The  State. 

The  second  charge  is,  perhaps,  obnoxious*to  criticism, 
in  this — that  it  does  not  sufficiently  confine  the  assem- 
bling or  loitering  of  the  slaves,  or  free  persons  of  color, 
to  a  place  or  places  at  or  about  the  premises  of  the  defen- 
dant.    This  will  be  remedied  on  another  trial. 

It  was  not  necessary  that  the  State  should  prove  affir- 
matively, that  the  defendant  permitted,  or  consented, 
that  slaves  should  visit,  stop,  or  assemble  at,  or  loiter  about 
his  premises.  The  police  of  his  own  premises  was  under 
his  control,  and  it  was  both  his  privilege  and  duty  to 
drive  them  away.  If  he  did  not  do  so^that  provisiou  of 
the  statute  was  violated. 

It  was  not  necessarv  that  the  d.efefldant  should  have 
been  a  licensed  retailer.  If  he  -J^ept  a  house  where  spir- 
ituous liquors  were,  sold,  retailed,  or  given  away,  that  was 
sufficient.  The-  phrase,  "shall  not  have  a  license  granted 
to  him  or  her  again,"  is  a  verbal  inaccuracy.  Its  mean- 
ing is  afterwards,  as^s  shown  by  other  provisions  of  the 
statute. 

What  we  have  said  will  sufficiently  guide  the  circuit 
court  in  another  trial. 


Reversed  and  remanded. 


/• 


( 

4 


SMITH  BTAL.M.  THE 'STATE. 


[INDICTMENT  FOK  OAMING.l 

>r 

1.  Conviction  on  testimony  of  accomplice. — Where  a  witness  testifies, 
that  he  was  present  while  the  several  defendants  played  a  number 
of  games  with  cards  ;  that  at  the  request  df  one  of  the  players, 
who  did  not  understand  the  game  well,  he  sat  behind  him, 
and  from  time  to  time,  during  the  whole  continuance  of  the  games, 
instructed  him  how  to  play ;  that  he  took  a  card,  on  one  or  two 
occasions,  from  the  hand  of  said  unskillful  player,  and  threw  it 
down  on  the  table  for  him,  and,  on  one  occasion,  during  the  mo- 


OF  ALABAMA.  85 


Smith  et  al.  v.  The  State. 


inentary  absence  of  said  player,  played  one  of  his  cards  for  him  ; 
and  that  he  was  also  engaged  in  reading  a  part  of  the  time, — the 
court  may  refuse  to  instruct  the  jury,  that  said  witness  was  an  ac- 
complice, (Code  I  3600,)  and  that  a  conviction  could  not  be  had  on 
his  uncorroborated  testimony. 
2.  What  const  Hides  public  house. — A  lawyer's  office  is  a  public  house, 
within  the  prohibition  of  the  statute  against  gaming,  (Code,  $3243,) 
and  where  it  consists  of  two  rooms,  front  and  back,  connected  by  a 
door,  in  each  of  which  professional  business  is  transacted,  thd  two 
rooms  are  eq  ially  within  the  statute. 

Apjeal  from  the  Circuit  Court  of  Choctaw. 
Tried  before  the  Hon.  A.  A.  Coleman. 

In  this  case,  George  Frank  Smith,  Marcellus  A.  Cole- 
man, M.  VanCamp  and  Charles  Hill  were  jointly  in- 
dicted for  gaming;  the  indictment  being  in  the  general 
form  prescribed  by  the  Code.  "  On  the  trial,"  as  the  bill 
of  exceptions  states,  "the  State  introduced  one  Moody  as 
a  witness,  who  testified,  that  within  twelve  months  be- 
fore the  finding  of  the  indictment,  and  in  said  county  of 
Choctaw,  the  defendants  played  several  games  with  cards, 
(called  'euchre,')  in  the  law-office  of  George  F.  and  G. 
Frank  Smith,  practicing  attorneys;  that,  said  office  was 
situated  on  the  street  facing  the  public  square  in  the  town 
of  Butler,  iii  which  public  square  is  the  court-house;  that 
there  were  two  rooms  in  sahl  office,  with  a  door  leading 
from  one  to  the  other;  that  the  law-books  of  said  attor- 
neys were  kept  in  the  front  room,  and  business  was  done 
with  the  public  in  both  rooms,  but  usually  in  the  back 
room,  where  the  writing-table  of  one  of  said  attorneys 
was  situated;  that  the  playing  was  done  in  said  back 
room;  that  the  door  between  the  two  rooms  and  the 
windows  were  closed,  and  the  back  door  could  not  be 
seen  from  the  street;  that  witness,  at  the  request  of 
Charles  Hill,  who  did  not  understand  the  game  well,  sat 
behind  him,  and,  from  time  to  time,  instructed  him  how 
to  play;  that  this  information  was  given  by  him  to  said 
Iliil,  from  time  to  time,  during  the  whole  continuance  of 
the  games;  that  he  took  a  card,  on  one  or  two  occasions, 


86  SUPREME  COURT 


Smith  et  al.  v.  The  State. 


from  said  Hill's  hand,  and  threw  it  down  on  the  table  for 
him;  that  on  one  occasion,  while  said  Hill  was  momen- 
tarily absent  from  the  room,  he  took  up  his  cards,  and 
'passed'  for  him,  (which  is  a  technical  expression  in  the 
game,)  and  that  he  (witness)  was  also  reading  a  medical 
book  a  part  of  the  time  the  game  was  going  on."  This 
being  all  the  evidence,  the  defendant  requested  the  court 
to  instruct  the  jury,  1st,  "that  the  said  witness  was  an 
accomplice,  within  the  meaning  of  section  8G00  of  the 
Code,  and  that  a  conviction  could  not  be  had  on  his  tes- 
timony alone;"  and,  2d,  "that  the  house  in  which  the 
playing  took  place,  was  not  a  public  house  within  the 
meaning  of  section  3243  of  the  Code."  The  court  re- 
fused these  charges,  .and  the  defendants  excepted  to  their 
refusal. 


William  Boyles,  for  the  defendants. 

M.  A.  Baldwin,  Attorney-General,  contra. 

A.  J.  WALKER,  C.  J.— [June  20,  1861.]— The  wit- 
ness only  participated  in  the  playing  by  aiding  an  unskill- 
ful player  with  his  advice,  and  at  one  time  doing  some 
little  acts,  during  a  brief  absence  of  such  unskillful 
player,  in  his  place.  These  acts  were  not  of  such  charac- 
ter as  necessarily  to  constitute  the  witness  an  accomplice, 
when  he  was  not  engaged  in  the  performance  of  them. 
During  a  part  of  the  playing,  the  witness  was  engaged  in 
reading.  While  he  was  so  engaged,  it  cannot  be  affirmed, 
as  a  legal  conclusion,  that  he  was  either  assisting  in  the 
game,  or  participating  in  it.  The  offense  may  have  been 
complete,  by  what  was  done  during  the  time  occupied  by 
the  witness  in  reading.- — Swallow  v.  State,  20  Ala.  30; 
Cannon  v.  State,  15  ib.  383;  Coggins  v.  State,  7  Porter, 
263.  The  court  was,  therefore,  not  authorized  to  assume 
conclusively,  that  the  witness  was  an  accomplice  at  all 
the  points  of  time  when  enough  was  done  to  authorize  a 
conviction.  This  the  court  was,  in  the  first  charge  asked, 
requested  to  do;  or,  at  least,  that  was  the  effect  of  the 
charge.     There  was,  therefore,  no  error  in  the  refusal. 


OF  ALABAMA.  87 


Bass  v.  The  State. 


[2.]  There  was  no  error  in   the  refusal  of  the  second 
charge  requested. 
Affirmed. 


BASS  m.  THE  STATE. 

[indictment  rOK  BETTING  at  ten-pins.] 

1.  Conviction  on  testimony  of  accomplice. — Under  the  act  of  1854, 
(Session  Acts,  1858-54,  p.  30,)  as  amended  by  the  act  of  1858, 
(Session  Acts,  1857-58,  p.  267,)  it  is  the  betting  at  ten-pins,  and 
not  merely  playing  the  game,  that  constitutes  the  offense  ;  conse- 
quently, a  person  who  engages  in  the  game,  and  does  not  partici- 
pate in  the  belting,  is  not  an  accomplice,  within  the  meaning  of 
section  3600  of  the  Code,  which  forbids  a  conviction  on  the  uncor- 
roborated testimony  of  an  accomplice. 

2.  When  objection  to  grand  jury  may  be  made.-— Thonobjection  cannot  be 
raised  for  the  first  time  in  the  appellate  court,  that  the  record  fails 
to  show  that  the  grand  jurors  were  regularly  selected  and  sum- 
mon ed. 

3.  Constituents  of  offense. — To  constitute  the  offense  of  betting  at  toll* 
pins,  (Session  Acts,  1857-58,  p.  267  ;  ib.  1853-54,  p.  30,)  it  is  not 
necessary  that  the  game  should  be  played  at  one  of  the  places 
enumerated  in  section  3243  of  the  Code. 

From  the  Circuit  Court  of  Covington. 
Tried  before  the  Hon.  Jxo.  K.  Henry. 

The  indictment  in  this  case  charged,  that  the  defend- 
ant, within  twelve  months  before  the  finding  of  the  in- 
dictment, and  after  the  8th  February,  1858,  "bet  at 
ten-pins,  or  some  such  game,  which  betting  was  not  for 
the  game."  The  defendant  demurred  to  the  indictment, 
for  duplicity,  for  uncertainty,  because  is  did  not  suffi- 
ciently describe  the  offense,  and  because  it  did  not  allege 
that  the  game  was  played  at  one  of  the  places  specified 
in  section  3243  of  the  Code;  but  hia  demurrer  was  over- 


88 SUPREME  COURT 

Bass  v.  The  State. 

ruled.  uOa  the  trial,"  as  the  bill  of  exceptions  states, 
"the  State  introduced  one  Rue  as  a  witness,  who  testified, 
that  the  defendant  and  one  Carson,  within  twelve  months 
before  the  finding  of  the  indictment,  agreed  to  roll  a 
game  of  ten-pins  at  a  public  alley  in  the  town  of  Anda- 
lusia in  said  county,  and  bet  the  feed  of  two  yokes  of 
oxen  for  three  weeks  on  the  result  of  said  game;  that 
Carson  asked  him  to  roll  the  game  for  him;  that  he  and 
Carson  rolled  said  game  against  defendant  and  another 
person,  whose  name  he  did  not  recollect;  that  they  went 
to  the  bar  several  times  during  the  game,  and  drank 
liquor;  that  Carson  won  the  game,  and  a  controversy  then 
arose  between  him  and  the  defendant,  as  to  the  construc- 
tion of  the  bet;  that  the  game  was  played  in  Covington 
county,  on  a  public  alley  in  the  town  of  Andalusia,  which 
was  kept  for  play  and  pay,  within  twelve  months  before 
the  finding  of  the  indictment;  that  he  had  no  interest 
whatever  in  the  bet  made  on  the  game,  or  for  the  alley 
fees,  or  for  the  liquor  drunk;  that  he  paid  for  nothing, 
and  neither  won  nor  lost  anything  on  the  game;  and  that 
his  only  connection  with  the  game  was  to  join  in  the  roll- 
ing f. :  Carson,  and  at  his  request."  The  defendant 
asked  the  court  to  instruct  the  jury,  "that  it  they  found, 
from  the  evidence,  that  the  witness  Rue  was  engaged  in 
rolling  the  game  for  Carson,  and  did  nothing  but  roll  for 
him,  and  took  no  part  in  the  betting,  but  drank  with  the 
others  at  the  conclusion  of  the  game,  he  was  an  accom- 
plice, and  they  could  not  convict  the  defendant  on  his 
uncorroborated  testimony."  The  court  refused  this 
charge,  and  the  defendant  excepted  to  its  refusal. 

John  McCaskill,  for  the  defendant. 

M.  A.  Baldwin,  Attorne}T-General,  contra. 

R.  W.  WALKER,  J.— [July  9,  1861.]— 1.  The  test,  by 
which  to  determine  whether  a  witness,  who  has  been  in- 
troduced by  the  State,  is  an  accomplice  within  the  mean- 
ing of  section  3000  of  the  Code,  is  the  inquiry,  could  the 
witness  himself  have  been  indicted  for  the  offense,  either 


OF  ALABAMA.  89 


Ex  parte  Kelly,  et  al. 


as  principal  or  accessory  ? — See  Davidson  v.  State,  33  Ala. 
350;  Bouvier's  Diet.,  "Accomplice."  Under  the  act  of 
Feb.  17,  1854,  (Acts  '53-^4,  p.  30,)  as  amended  by  the 
act  of  Feb.  8,  1858,  (Acts  '57-8,  p.  267,)  it  is  the  betting 
at  ten-pins,  and  not  merely  playing  the  game,  that  con- 
stitutes the  offense.  As  the  witness  did  not  bet,  and  was 
not  concerned  in  the  bets  made  by  others  who  took  part 
in  the  game,  he  could  not  have  been  indicted;,  and  there- 
fore,, was  not  an  accomplice. 

[2.]  The  objection,  that  the  record  fails  to  show  that 
the  grand  jury  was  regularly  selected  and  summoned, 
cannot  be  made  for  the  first  time  in  this  court. — Code, 
§  3591;  Shaw  v.  State,  18  Ala.  549;  Nugent  v.  State, 
19  Ala.  540;  Floyd  v.  State,  30  Ala.  511-  Russell  v. 
State,  33  Ala.  366. 

[3.]  It  is  not  necessary  to  constitute  the  offense  of 
betting  at  ten-pins,  that  the  playing  should  take  place  at 
one  of  the  places  enumerated  in  section  3243  of  the  Code. 
Hence,  the  objection  to  the  indictment  was  not  well 
taken. 

Judgment  affirmed. 


Ex  Parte  KELLY,  et  al. 

[application  for  habeas  cokits.] 

1,  Jurisdiction  of  State  courts  to  discharge  person  in  custody  for  violation 
of  crimn  '  United  States. — The  courts  of  this  State  have  now 

(July  !>,  1861,)  no  jurisdiction  to  discharge  from  custody  a  person 
who  was  arrested  prior  to  the  passage  of  the  ordinance  of  secession, 
oharge.1  with  a  violation  of  the  criminal  laws  of  the  Uniled  Stales 
within  the  limits  of  the  State  of  Virginia  ;  the  question  of  his  right 
to  be  discharged,  or  his  transfer  to  the  proper  court  in  Virginia,  for 
trial,  appertaining  to  the  jurisdiction  of  the  district  court  of  the 
Confederate  States. 


SUPREME  COURT 


Ex  parte  Kelly,  et  al 


Application  by  John  Kelly  and  Richard  Dodge,  a  lias 
Richard  Ilorton,  for  the  writ  of  habeas  corpnsr  or  other 
remedial  process,  to  obtain  th'eir  release  from  imprison- 
ment in  the  county  jail  of  Mobile.  The  petitioners  were 
arrested  under  a  warrant,  dated  November  2,  1860,  issued 
by  a  justice  of  the  peace  in  Mobile,  (acting  under  the  au- 
thority conferred  on  him  by  the  act  of  congress  approved 
the  24th  September,  1789,  known  as  the  "judiciary  act,") 
on  a  charge  of  assault  and  battery  and  robbery,  "said  to 
have  been  committed  by  them,  on  the  person  of  one 
Martin  Green,  in  the  month  of  September,  1860,  on  board 
the  American  ship  Eastern  Star,  in  the  Potomac  river, 
near  its  mouth,  and  contiguous  to  the  Chesapeake  bay ; "" 
and  were  committed  to  jail  by  the  justice,  to  answer  said 
charge  "before  the  next  grand  jury  for  the  United  States 
of  America."  At  the  December  term,  1860,  of  the  dis- 
trict court  of  the  United  States  for  the  southern  district 
of  Alabama,  Hon.  Wn.  G.  Jones  presiding,  the  grand 
jury  investigated  the  case,  and  returned  into  court  a  re- 
port in  writing,  in  which  they  stated,  that  they  were 
satisfied  of  the  commission  of  the  offense  by  the  prison- 
ers, but  were  advised  that  the  court  had  no  jurisdiction 
of  the  case,  except  to  order  its  transfer,  and  the  removal 
of  the  prisoners  for  trial,  to  the  proper  tribunal;  and  the 
court  thereupon  made  an  order,  on  the  11th  January,  1861, 
(the  day  on  which  the  Alabama  ordinance  of  secession 
was  adopted,)  directing  the  United  States  marshal  of  that 
district  to  remove  the  prisoners  to  the  eastern  district  of 
Virginia,  and  to  deliver  them  to  the  marshal  of  that  dis- 
trict. On  the  8th  February,  1861,  the  prisoners  sued  out 
a  habeas  corpus  before  the  Hon.  Henry  Chamberlain,  the 
ut'  the  city  court  of  Mobile,  who,  ou  the  hearing  of 
the  case,  remanded  them  t<>  jaii;  and  on  the  7th  March, 
1861,  they  renewed  their  application  to  this  court.  The 
opinion    of    this  court   was   delivered   on   the   9th  July, 

1861. 

F.  S.  Blount,  for  the  prisoners. — 1.  The  order  of  Judge 
Jones,  haying  been   made   on  the  day  the  Alabama  ordi- 


OF  ALABAMA.  91 


Ex  parte  Kelly,  et  a!. 


nance  of  secession  was  passed,  is  void. — Arnold  v.  United 
States,  9  Crunch,  104.  That  ordinance  was  a  revocation 
of  the  entire  legislation  of  the  United  States  congress,, 
within  the  limits  of  this  State;  and  this  state  of  things 
continued  until  the  20th  January,  when  the  convention 
adopted  such  portions  of  the  United  States  laws  as  they 
deemed  necessary  for  the  government  of  the  State. 

2.  The  ordinance  of  20th  January,  continuing  and 
transferring  to  State  courts  the  cases  pending  in  the 
United  States  courts,  expressly  excepts  from  its  operation 
those  cases  4k in  which  the  United  States  of  America  is 
plaintiff';'  and  the  effect  of  this  exception  is  to  difrcon- 
tinue  all  prosecutions  at  the  suit  of  the  United  State.-; 
The  adoption  of  the  act  of  1825,  respecting  crimes  against 
the  United  States,  by  the  Gth  section  of  that  ordinance, 
was  prospective  in  its  operation,  and  could  not  revive  a 
criminal  prosecution  which  had  been  discontinued. 

3.  The  prisoners  have  committed  no  offense  against 
the  laws  of  Alabama.  They  are  charged  with  the  com- 
mission of  an  offense,  outside  the  limits  of  the  State, 
against  a  government  whose  laws  and  jurisdiction,  within 
this  State,  arc  abolished;  and  there  is  now  no  law  by 
which  they  can  be  detained  or  punished.  Nor  has  the 
United  States,  though  now  a  foreign  government,  any 
right  to  demand  their  surrender  for  trial,  since  that  is  a 
right  which  only  exists  by  virtue  of  treaty  stipulation  ; 
and  any  treaty  between  the  United  States  and  tli"  (\»u- 
federate  States,  hereafter  made,  would  not  reach  Ltsir 
case.— 2  Brock.  C.  C.  493. 

4.  Unless  discharged  by  authority  of  a  State  court,  the 
prisoners  are  without  remedy;  the  ordinance  of  s  •  i 
having  abrogated  the   constitution  of  the   United  Mates, 
its  laws,  courts,  judges,  and  officers.     The  following 
thorities  are  referred  to:   R  »sC  v.  Ilimely,  4  Crahch, 
Elliott  v.  Piersol,  1  Peters,  340;  Exchange  v.  McF; 

7  Cranch,  llii;    Williams  v.  Suffolk  Ins.  C  «..  3  Sumnerj 
C.  C.  270;   Vattel's  Law  of  Nations,  (ed.  1*29. 

A.J.  WALKER,  C.  J.— [Julj  9,  1861.]— We  think 


92  SUPREME  COURT 


Ex  parte  Kelly,  et  al. 


that,  at  this  time,  the  application  for  the  habeas  corpus  m 
this  case  appertains  to  the  jurisdiction  of  the  .  district 
court  of  the  Confederate  States  of  America;  and  that 
guided  by  the  decision  in  Ableman  v.  Booth,  (21  How. 
506,)  which  we  recognize  as  an  able  and  correct  exposi- 
tion of  the  law,  we  have  no  authority  to  interfere  in  the 
matter.  We  state,  briefly,  the  reasons  that  lead  us  to 
that  conclusion.   • 

The  ordinance  of  the  convention  of  the  State  of  Ala- 
bama, conferring  the  judicial  power  of  the  courts  of  the 
United  States  in  this  State  upon  the  State  courts,  was' 
limited  in  its  operation  to  the  time  when  the  congress  of 
the  Confederate  States  should  otherwise  dispose  of  the 
jurisdiction.  The  constitution  of  the  provisional  gov- 
ernment, in  its  third  article,  bestows  that  jurisdiction 
upon  the  district  courts;  and  bestows  upon  the  congress 
of  the  Confederate  States  power  to  make  laws  for  the 
transfer  of  causes,  pending  in  the  courts  of  the  United 
States,  to  the  courts  of  the  Confederacy.;  and  also  forthe 
execution  of  the  orders,  decreeH  and  judgments  thereto- 
fore rendered  by  the  courts  of  the  United  States.  Section 
fifty  of  the  act  of  the  provisional  congress,  to  establish  the 
courts ot  the  Confederate  States,  adopted  March  l(kh,1861, 
provides,  that  no  person  now  under  arrest,  or  in  custody, 
upon  any  criminal  charge  or  offehse,  on  process  issued 
from  the  courts  of  the  United  States,  shall  be  released  by 
reason  of  the  dissolution  of  the  Union;  but  he  shall 
continue  under  arrest,  or  in  custody,  until  discharged  by 
due  course  of  law.  The  State  of  Virginia  is  now  a  mem- 
ber of  the  Confederacy  ;  and  an  act  of  congress,  approved 
9th  February,  1861,  continues  all  laws  of  the  United 
States  in  force  and  in  use  in  the  Confederate  States  of 
America  on  the  first  day  of  November  last,  and  not  in- 
consistent with  the  constitution  of  the  Confederate 
States. 

In  view  of  the  constitutional  and  legislative  provisions 
above  stated,  we  are  not  prepared  to  decide,  that  the 
judge  of  the  district  court  is  without  authority  to  trans- 
mit the  prisoners  to  the  proper  court  in  Virginia  for  trial, 


OF  ALABAMA.  93 


lsham  (a  slave)  v.  The  State. 


as  might  have  been  done  under  the  laws  of  the  United 
States,  it  the  Union  had  not  been  dissolved. — Brightley's 
Digest,  p.  90.  At  all  events,  we  feel  entirely  elear  in  the 
opinion,  that  the  question  «f  the  prisoners'  right  to  a 
discharge  is  a  matter  now  appertaining  to  the  jurisdiction 
of  the  district  court  of  the  Confederate  States;  and  it 
would  bo  improper  for  us,  at  this  time,  to  grant  to  the 
prisoners  any  remedial  process. 
Motion  refused. 


ISHAM  (a  slave)  vs.  THE  STATE. 

[iNDICTMEXT  AGAINST  SLAVE  FOR  BOM  WIDE  OF   WHITE  PERSON.] 

1.  Homicide  of  whit  t  person  by  slave. — If  a  slave  kills  a  white  person, 
believing  him  at  the  time  to  he  a  runaway  negro,  and  being  .justi- 
fied by  the  attendant  circumstances  in  the'belief,  the  degree  of  the 
homicide-whether  murder,  voluntary  manslaughter, or  involuntary 
manslaughter — is  the  same  that  it  would  have  heen  if  the  person 
slain  had  been  a  run  .way  negro;  but  the  punishment  of  the 
offense  is  that  prescribed  for  such  degree  of  homicide  when  perpe- 
trated by  a  slave  on  a  white  person. 

2.  Conviction  of  less  offense  than  charged  in  indiclment. — Under  an  in- 
dictment charging  a  slave  with  the  voluntary  manslaughter  of  a 
white  person,  a  conviction  may  be  had  for  involuntary  man- 
slaughter in  the  commission  of  an  unlawful  act. 

From  the  Circuit  Court  of  Jefferson. 
Tried  before  the  lion.  Wm.  S.  Mudd. 

The  indictment  in  this  case  contained  three  counts; 
the  first  charging  that  the  prisoner,  who  was  a  slave,  the 
property  of  Capt  W.  F.  Hanby,  "unlawfully,  and  with 
malice  aforethought,  killed  George  M.  Ilagood,  by  shoot- 
ing him  with  a  gun;"  the  second,  that  he  "unlawfully 
and  intentionally,  but  without  malice,  killed  George  M. 


94  SUPREME  COURT 


Isham  (a  slave)  v.  The  State. 


Hagood,  a  white  person,"  &c;  and  the  third,  that  he 
"  unlawfully,  but  without  malice  or  the  intention  to  kill, 
killed  George  M.  Hagood,  a  white  person,"  &c.  The 
circuit  court  sustained  a  demurrer  to  the  third  count,  and 
the  prisoner  pleaded  not  guilty  to  the  other  counts. 

"On  the  trial,"  as  the  bill   of  exceptions  states,   "the 
prosecution  introduced  a  witness,  who  testified,  that,  on 
the  night  the  deceased  (who  was  a  white  man)  was  killed, 
he,  in  company  with  the  deceased  and  two  other  white 
men,  went  by  agreement  to  the  house  of  .the  prisoner's 
master,  (all  the  white  family  being  absent,)  for  the  pur- 
pose of  catching  a   runaway  slave,  who   was  said  to  be 
lurking  about  the  place,  and  of  detecting  the  prisoner  in 
harboring  said  runaway,  if  guilty  of  so  doing;  that  the 
deceased  and  himself  disguised  themselves,  by  blacking 
themselves,  putting  on  old  clothes,  and  haying  a  budget 
tied  up  in  a  handkerchief;  that  they  went  near  the  negro 
house,  and   made   a   noise  there,  and  then  went  to  the 
corner  of  the  house,  and  struck  on  it  with  a  stick;  that 
the  dog  barked  fiercely  during  the  time,  and  the  prisoner 
hissed  on   the  dog;  that   the  prisoner  came  round   the 
house,  and,  as  soon  as  he  got  in  sight,  asked,  'Who  are 
you?'    that  the  deceased   replied,   'A  partner,'   and,   as 
soon  as  the  reply  was  out,  the  prisoner  fired,  and   killed 
the  deceased;  that  he  (witness)  then  said,  '.Don't  shoot, 
you   have   killed    Mansfield;'  that  the  prisoner  replied, 
'Lord,  Massa  George,  why  didn't  you  speak?'  and  that 
the  prisoner  remained   until  morning,  assisting  to  wash 
and  lay  out  the  deceased,  and  was  arrested  in  the  morn- 
ing.    There  was  other  testimony,  confirming  said  witness, 
and  showing  that  said  party  went  towatoh  Capt.  Han  by 's 
house  in  disguise  by  consent  and   agreement  with  him. 
There  was  testimony  tending  to  show,  also,  that   some 
person  had  been  seen  by  night  about  said  premises,  while 
Capt.   Ilanby  was  absent  in   camp  drilling  his  company ; 
that  on  the  night   before  the  killing,    the  prisoner  had 
taken  the  gun,  in  presence  of  his   mistress,  and  run  out 
some  distance  from  the  house,   and  shot  (as  he  said)  at 
some  person.     It  was  in  proof,  also,  that  the  prisoner,  on 


OF  ALABAMA.  95 


Isham  (a  slave)  v.  The  State. 


the  morning  before  the  killing,  asked  his  mistress  for  the 
guu,  to  carry  to  the  field;  that  she  refused,  and  forbade 
his  having  or  taking  the  gun;  and  that  he  took  the  gun 
from  the  house,  on  the  night  ot  the  killing,  without  the 
knowledge  or  consent  of  his  master  or  mistress,  and  du- 
ring the  absence  of  the  white  family  fcom  home. 

"The  prisoner  asked  the  court  to  charge  the  jury  as 
follows:  'It  the  jury  believe,  from  the  evidence,  that 
the  deceased  disguised  himself,  by  blacking  himself,  and 
the  manner  in  which  he  was  clothed,  for  the  purpose  of 
deceiving  the  prisoner,  and  making  him  believe  that  he 
was  a  runaway  slave;  and,  under  such  disguise,  went  to 
the  prisoner's  house  on  his  master's  premises,  at  an  un- 
usual hour  of  the  night,  between  midnight  and  day; 
and  there,  by  his  disguised  condition,  and  the  manner  in 
which  he  acted,  deceived  the  prisoner;  and  that  the  pris- 
oner, in  truth  and  in  fact,  believed  that  the  deceased  was 
a  runaway  negro  slave,  and,  under  that  delusion,  shot 
and  killed  the  deceased, — then  he  is  neither  guilty  of 
murder,  nor  of  the  voluntary  manslaughter  of  a  white 
person,  nor  of  the  involuntary  manslaughter  of  a  white 
person  in  the  commission  of  an  unlawful  act.'  The  court 
refused  this  charge,  and  the  prisoner  excepted. 

"The  court  charged  the  jury,  that  the  counts  in  the 
indictment  included  the  charge  of  involuntary  man- 
slaughter; to  which  charge,  also,  the  prisoner  excepted." 

The  verdict  of  the  jury  was,  "Guilty  of  voluntary 
manslaughter,  as  charged  in  the  second  count  of  the  in- 
dictment." 

E.  W.  Peck,  for  the  prisoner. — By  the  criminal  law,  a 
man  may  safely  act  upon  appearances;  and  if  he  acts  in 
good  faith,  their  falsity  does  not  in  any  manner  increase 
his  guilt  or  criminality. — Meredith  v.  Commonwealth, 
18  B.  Monroe,  40;  Shorter  v.  People,  2  Comstoek,  107. 
This  principle  is,  in  substance,  recognized  in  Oliver's 
case,  (17  Ala.  587,)  "and  in  Carroll's  case,  (23  Ala.  28.) 
The  act  itself  does  not  make  a  man  guilty:  to  constitute 
a  crime,  the  act  and   intent  must  both  concur. — Broom's 


96  SUPREME  COURT 

Isham  (a  slave)  v.  The  State. 

Legal  Maxims,  211,  212,  221;  7  Term  Rep.  514;  Hale's 
P.  C.  509.  "If  a  man,  intending  to  kill  a  thief,  or  a 
housebreaker,  in  his  own  house,  happen  by  mistake  to 
kill  one  of  his  own  family,  it  cannot  be  imputed  to  him 
as  a  crime." — 3  Cro.  Rep.  538. 

In  this  case,  these  was  no  malice  of  the  will — no  cor- 
rupt intent  on  the  part  of  the  prisoner.  In  the  absence 
of  his  master  and  mistress,  he  was  left  at  home  the  guar- 
dian and  protector  of  their  house  and  property.  Danger 
of  mischief  was  justly  apprehended,  some  unknown  per- 
son, supposed  to  be  a  runaway  slave,  having  been  seen 
prowling  about  at  night.  The  deceased  and  his  party  dis- 
guised themselves  as  runaway  slaves,  and,  by  their  conduct, 
induced  the  prisoner  to  believe  that  they  were  in  fact 
what  they  assumed  to  be.  Acting  on  this  belief,  the 
prisoner  committed  no  crime  in  attempting  to  protect  his 
master's  house  and  property.  If  his  act  was  not  strictly 
lawful,  it  was  at  least  excusable.  As  to  the  degree  of 
caution  which  must  be  exercised,  where  a  homicide  is 
committed  under  an  honest  mistake  of  fact,  see  Foster's 
Crown  Cases,  263-65. 

2.  The  affirmative  charge  of  the  court  is  erroneous. 

M.  A.  Baldwin,  Attorney-General,  contra. — 1.  The 
charge  asked  by  thejprisoner,  asserts  three  distinct  propo- 
sitions, each  of  which  is  untenable;  namely,  that  the 
prisoner,  on  the  facts  supposed,  would  not  be  guilty  of 
any  one  of  the  three  specified  offenses — murder,  the  vol- 
untary manslaughter  of  a  white  person,  or  the  involun- 
tary manslaughter  of  a  white  person  in  the  commission 
of  an  unlawful  act.  As  murder,  when  committed  by  a 
slave,  whether  by  killing  a  white  person  or  a  negro,  is 
precisely  the  same  offense,  and  subject  to  the  same  pun- 
ishment, the  first  proposition  is  manifestly  erroneous. 
As  the  prisoner  was*guilty  of  an  unlawful  act  in  having 
the  gun,  (Code,  §  1012,)  as  well  as  in  shooting  it,  he  was 
at  least  guilty  of  the  involuntary  manslaughter  of  a  white 
person  in  the  commission  of  an  unlawful  act;  to  consti- 
tute which  offense,  a  knowledge  of  the  status  of  the  per- 


OF  ALABAMA.  97 


Isham  (a  slave)  v.  The  State. 


son  slain  is  not  a  necessary  ingredient;  consequent^,  the 
last  proposition  asserted  by  the  charge  is  also  erroneous. 
"Whether  the  prisoner  was  guilty  of  voluntary  man- 
slaughter, or  the  voluntary  manslaughter  of  a  white 
person,  depended  upon  other  facts  than  those  hypotheti- 
cally  stated  in  the  charge,  and  was  to  be  determined  by 
a  consideration  of  all  the  facts  in  the  case.  Although,  to 
constitute  a  crime,  an  evil  act  and  an  evil  intent  must 
both  concur;  yet  a  man  may  intend  to  commit  one  wrong, 
and,  failing  in  it,  commit  another;  in  which  case,  the 
wrong  iutende  t  and  the  wrong  done  coalesce  and  create 
the  crime. — 1  Bishop  on  Criminal  Law,  254;  Wharton, 
§  905.  The  mere  fact  that  the  prisoner  believed  the  de- 
ceased to  be  a  runaway  slave,  would  afford  him  no  pro- 
tection, if  he  had' the  means  of  ascertaining  the  true  facts, 
and  did  not  do  so. — 1  Bishop's  Crim.  L.  242;  Wharton, 
§  1005;  Barnes  v.  State,  19  Conn.  398;  Commonwealth 
v.  Marsh,  7  Metcalf,  472;  United  States  v.Liddle,  2  Wash. 
C.  C.  205;  Unted  States  v.  Ortega,  4  Wash.  C.  C.  530; 
United  States  v.  Benners,  1  Baldwin's  C.  C.  240. 

2.  The  affirmative  charge  of  the  court  is  sustained  by 
the  decision  in  Henry's  case,  33  Ala.  389. 

A.  J.  WALKEK,  C.  J.— [Feb.  1,  1862.]— The  charge 
asked  by  the  prisoner;  and  refused  by  the  court,  involves 
the  assertion,  that  -the  prisoner  could  not  bo  guilty  of 
murder,  because  the  homicide  was  committed  under  the 
delusion  that  the  deceased  was  a  runaway  slave,  and  that 
delusion  was  justified  by  the  attendant  circumstances. 
In  so  far  as  the  charge  involves  that  assertion,  it  was  ob- 
viously wrong.  A  homicide,  committed  by  a  slave,  un- 
der such  circumstances  as  would  constitute  murder,  would 
be  the  same  offense,  and  subject  to  the  same  punishment, 
whether  the  deceased  was  a  white  person  or  a  negro; 
and  it  could  make  no  difference,  in  that  case,  that  the 
prisoner  supposed  the  deceased  to  be  a  slave. — Code, 
§  3312. 

The  charge,  however,  was  designed  to  assert,  that  a 
slave,  slaying  a  white  person,  under  the  delusion  and  be- 


98 SUPREME  COURT 

Isham  (a  slave)  v.  The  State. 

lief,  justified  by  the  circumstances,  that  the  person  killed 
was  a  runaway  negro,  would  not  be  guilty  of  the  volun- 
tary manslaughter  of  a  white  person,  nor  of  the  involun- 
tary manslaughter  of  a  white  person  in  the  commission 
of  an  unlawful  act;  although,  if  the  appearances  had 
been  true,  he  would  have  been  guilty  of  the  voluntary  or 
involuntary  manslaughter  of  a  slave.  This  proposition 
is  important,  because  a  higher  grade  of  punishment  is 
prescribed,  where  those  offenses  are  perpetrated  by  a 
slave  upon  a  white  person,  than  is  prescribed  where  they 
are  perpetrated  upon  a  negro. — Code,  §§  3313,  3314.  To 
support  the  proposition,  it  is  asserted  as  a  correct  princi- 
ple, that  the  guilt  of  a  party  of  any  particular  offense  is 
to  be  determined  in  the  light  of  the  circumstances  as 
they  appeared  to  him  ;  and  that,  therefore,  the  prisoner 
cannot  be  guilty  of  the  manslaughter  of  a  white  man, 
because  it  falsely  appeared  to  him  that  the  object  slain 
was  not  a  white  man.  We  do  not  concede  the  principle  so 
asserted,  in  the  latitude  in  which  it  is  thus  stated.  It 
stands  opposed  to  the  doctrine  which  authorizes  a  con- 
viction of  one  offense,  when  the  accused  committed  it, 
while  designing  and  endeavoring  to  perpetrate  another. 
The  true  doctrine,  as  we  conceive,  is,  that  "  where  a 
party,  without  fault  or  carelessness,  is  misled  concerning 
facts,  and  acts  as  he  would  be  justified  in  doing  if  the 
facts  were  what  he  believes  them  to>be,  he  is  legally,  as 
he  is  morally,  innocent." — 1  Bishop's  Cr.  Law,  §  242. 
The  charge  asked  and  refused  is  at  war  with  this  princi- 
ple; for  it  assumes  that,  no  matter  what  the  degree  of 
guilt  which  would  have  existed  if  the  appearance  that  the 
person  slain  was  a  negro  had  been  true,  the  accused  can 
not  be  guilty  of  the  homicide,  in  any  of  its  degrees,  of  a 
white  person.  The  effect  of  it  is,  that  although  the  ac- 
cused would  have  been  guilty  of  the  murder  or  man- 
slaughter of  a  negro,  if  the  appearances  had  been  true, 
he  cannot  be  guilty  of  the  murder  or  manslaughter  of  a 
white  man,  the  appearances  being  false.  The  inevitable 
result  oi  this  doctrine  would  be,  that  the  accused,  al- 
though guilty  of  murder  or  manslaughter,  could  not  be 


OF  ALABAMA.  99 


Isham  (a  slave)  v.  The  State. 


convicted  of  any  offense.  He  could  not  be  convicted  of 
killing  a  negro,  because  in  fact  he  killed  a  white  man  ; 
and  he  could  not  be  convicted  of  killing  a  white  person, 
because  the  appearances  superinduced  and  justified  the 
belief  that  he  was  killing  a  negro. 

It  is  not  indispensable  to  the  constitution  of  a  crime,  that 
the  prisoner  should  commit  the  very  act  intended.  Cer- 
tainly, there  must  concur  a  wrongful  intent,  and  a  wrong- 
ful act.  But  he  who,  aiming  to  accomplish  one  wrongful 
act,  fails  in  that,  but  perpetrates  another,  is  not  excwsed; 
The  wrongful  intent,  and  the  wrongful  act,  are  said  to 
coalesce  and  make  the  crime. — Bishop  on  Cr.  Law,  §.254. 
Numerous  illustrations  of  this  doctrine  are  to  be  found 
in  the  books.  Where  there  is  a  design  to  commit  a  fel- 
ony, and  a  homicide  ensues,  against  or  beyond  the  intent 
of  the  party,  he  is  guilty  of  murder;  but,  if  the  intent 
went  no  further  than  to  commit  a  bare  trespass,  it  will 
be  manslaughter. — 1  East's  Cr.  Law.  255.  If  A  gives  a 
poisoned  apple  to  B,  intending  to  poison  B  ;  and  B,  igno- 
rant of  it,  gives  it  to  achild^wbo  takes  it  and  dies,  A  is 
guilty  of  the  murder  of  the  child,  but  B  is  guiltless. 
And  so,  if  one,  out  of  malice  af  A,  shoots  at  him,  but  misses 
him,  and  kills  B,  it  is  no  less  murder  than  if  lie  had 
killed  the  person  intended. — Wharton's  Cr.  Law,  §  965. 
These  illustrations  will  suffice  to  show,  that  to  the  con- 
viction of  a  slave  for  the  homicide  of  a  white  man,  it  is 
not  indispensable  that  there  should  exist  an  intent  to  kill 
a  white  person,  or  even  a  knowledge  that  the  deceased 
Was  a  white  man.  Indeed,  one  may  be  guilty  of  invol- 
untary manslaughter,  where  there  was  no  intent  to  kill. 
A  homicide,  resulting  from  an  attempt  to  commit  any 
unlawful  act,  would  be  manslaughter;  and  therefore,  if 
a  slave  should  shoot  unlawfully  at  a  beast,  and  by  chance 
kill  a  white  person,  he  would  be  guilty  of  the  involun- 
tary manslaughter  of  a  white  person  in  the  commission 
of  an  unlawful  act,  although  he  might  be  ignorant  of  the 
proximity  of  the  person  slain.  Surely,  the  crime  could 
not  be  less,  if  the  purpose  was  to  kill  a  negro  instead  of 
a  beast ;  and  yet  such  is  the  conclusion  to  which  the  ar- 


100  SUPREME  COURT 


Isham  (a  slave)  v.  The  State. 


o-ument  for  the  prisoner  would  lead.  The  statute  does 
not  make  a  knowledge  that  the  deceased  was  a  white 
person  an  ingredient  of  the  offense,  and  we  cannot  decide 
that  it  is.  There  being  a  criminal  intent,  the  defendant 
is  guilty,  notwithstanding  he  was  mistaken  as  to  the 
person  upon  whom  his  unlawful  purpose  fell. — See  the 
authorities  collected  in  1  Bishop  on  Cr.  Law,  §  247,  and 
on  the  attorney-general's  brief. 

The  loth  of  Lord  Bacon's  maxims  is  as  follows :  "  In 
criminalibus,  safficit  generalis  maliiia  intentionis,  cum  facto 
paris  gradus." — 3  Bacon's  Works,  238 ;  Broom's  Legal 
Maxims,  238.  In  reference  to  this  maxim,  the  learned 
author  says :  "All  crimes  have  their  conception  in  a  cor- 
rupt intent,  and  have  their  consummation  and  issuing  in 
some  particular  fact;  which,  though  it  be  not  the  fact,  at 
which  the  intention  of  the  malefactor  leveled,  yet  the 
law  giveth  him  no  advantage  of  that  error,  if  another 
particular  ensue  of  as  high  a  nature."  We  do  not  find 
this  maxim  so  recognized  by  subsequent  writers  on  the 
criminal  law,  and  by  those'adjudging  criminal  causes,  as 
to  induce  us  without  hesitation  to  adopt  it  as  a  correct 
exposition.  The  explanation  of  the  maxim  would  seem 
to  imply,  that,  to  constitute  the  crime,  it  is  only  neces- 
sary that  the  act  should  be  of  as  high  a  nature  as  the 
intent;  and  not  to  imply  a  denial  that  the  crime  might 
take  its  complexion  from  an  act  of  criminality  higher 
than  the  intent.  If  this  be  the  construction,  it  would 
not  aid  the  accused.  If  the 'maxim  import  that  there 
must  be  a  perfect  correspondence  between  the  intent  and 
the  act,  it  can  not  be  harmonized  with  principles  too  well 
established  to  be  controverted.  A  homicide,  not  intended, 
but  committed,  in  the  perpetration  of  burglary  or  arson, 
would  be  murder,  notwithstanding  the  offenses  intended 
are  not,  in  our  law,  ot  as  high  a  grade,  or  subject  to  as 
severe  penalties,  as  murder.  We  shall  not  engage  in  any 
speculation  as  to  the  true  import  and  operation,  or  the 
authority,  of  the  maxim,  but  shall  content  ourselves  with 
announcing  the  conclusion,  that  we  can  not  be  led  by  it  to 


OF  ALABAMA.  101 


Isham  (a  slave)  v.  The  State. 


oppose  the  proposition  which  we  now  proceed  to  state, 
as  follows : 

A  slave,  who  kills  a  white  man,  intending  to  kill  a 
negro,  is  guilt}'  of  a  criminal  homicide  in  the  degree  in 
which  he  would  have  been  guilty  if  the  person  slain  had 
been  a  negro;  and  he  is  subject  to  the  punishment  pre- 
scribed for  the  commission  of  the  offense  upon  a  white 
person.  The  maxim,  in  its  literal  translation,  only  re- 
quires, that  the  act  should  jDe  of  equal  grade  with  the 
intent;  not  that  the  same  punishment  should  be  incident 
to  the  thing  done  as  to  the  thing  intended.  Crimes  may 
be  of  the  same  degree,  and  yet  subjected  by  law,  founded 
in  public  policy,  to  different  punishments.  The  man- 
slaughter of  a  white  man  by  a  slave,  and  the  manslaughter 
of  a  negro  by  a  slave,  belong  to  the  same  degree  of  homi- 
cide, and  yet  are  subjected  to  variant  punishments.  So, 
also,  manslaughter  committed  with  a  bowie-knife,  and 
manslaughter  committed  with  a  different  weapon,  are 
offenses  of  the  same  degree,  and  yet  there  is  a  distinction 
made  in  the  punishments  prescribed.  Numerous  other 
illustrations  might  be  drawn  from  our  criminal  law.  In 
all  those  cases,  as  in  this,  the  difference  is  not  in  the  de- 
gree, but  in  the  punishment;  and  the  difference  in  the 
punishment  is  the  result  of  some  incident  to  the  crime, 
which  from  public  policy  the  law  makes  an  aggravation. 
If,  therefore,  we  take  the  maxim  in  its  literal  import,  we 
find  nothing  inconsistent  with  our  position. 

In  the  case  of  Bob  v.  The  State,  (29  Ala.  20,)  it  was 
argued,  that  the  prisoner,  a  slave,  when  committing  an 
assault  and  battery  upon  another  slave,  by  accident  struck 
and  killed  the  deceased,  who  was  a  white  person.  In 
reference  to  that  aspect  of  the  case,  this  court  said:  "We 
hold,  that  if  a  slave,  in  the  attempt  unjustifiably  to  com- 
mit an  assault,  or  assault  and  battery,  on  another  slave, 
kill  a  white  persoD  by  misadventure,  he  is  guilty  of  in- 
voluntary manslaughter,  under  section  3312  of  the  Code." 
This  is  an  express  adjudication  of  the  point  hiade  in  this 
case,  that  a  slave  can  not  be  guilty  of  the  manslaughter 
oi  a  white  person,  when  the  intent  was  aimed  at  a  negro. 


102  SUPREME  COURT 


The  State  v.  Lee  &  Norton. 


If  one  intending  to  beat  a  negro,  and  unintentionally 
killing  a  white  person,  is  guilty  of  the  homicide  of  a  white 
son  ;  a  fortiori,  is  a  slave  thus  guilty,  when,  intending 
to  kill  a  negro,  he  by  mistake  kills  a  white  person. 

[2.]  Wj3  are  content  to  abide  by  the  decision  in  Henry's 
case,  33  Ala.  389.  Upon  the  principle  of  that  decision, 
the  accused  might  be  convicted  of  the  involuntary  man- 
slaughter of  a  white  person,  under  a  count  for  the  volun- 
tary manslaughter  of  a  white  person.  There  was,  there- 
fore, no  error  in  the  charge  given  by  the  court. 

The  judgment  of  the  court  below  is  affirmed,  and  its 
sentence  must  be  executed,  as  therein  ordered. 


[APPI.K 


THE  STATE  vs.  LEE  &  NORTON. 


.ICATION  TO  commissioners'  coukt  fok  correction  of  tax  assess- 
ment.] 

1.  Tax  on  auction  sales. — The  tax  imposed  by  law  on  the  gross 
amount  of  auction  sales,  (Code,  \  391,  subd.  17,)  is  to  be  assessed 
against  and  paid  by  the  auctioneer,  and  not  by  the  owner  of  the 
property  sold. 

Appeal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  lion.  Nat.  Cook. 

The  appellees  in  this  case,  who  were  licensed  auction- 
eers in  the  city  and  county  of  Montgomery,  applied  to 
the  commissioners'  court  of  said  county,  at  its  April 
term,  1861,  for  an  amendment  and  correction  of  the 
taxes  assessed  against  them  for  the  tax  year  ending  on 
the  1st  March,  1860;  alleging  in  their  petition,  that,  du- 
ring said  tax  year,  they  had  sold  at  auction  in  said  city 
real  estate  belonging  to  divers  persons,  the  proceeds  of 
which  sales  amounted  in  the  aggregate  to  $43,742.50, 
and  that  the  county  assessor  had  assessed  against  them  a 


OF  ALABAMA.  103 


The  State  v.  Lee  &  Norton. 


tax  of  one  per  cent,  on  the  gross  amount  of  said  sales ; 
which  tax,  as  they  insisted,  ought  to  have  been  assessed 
against  the  several  owners  of  said  real  estate,  who  were 
shown  to  be  resident  citizens  of  said  county.  The  com- 
missioners' court  held  the  assessment  correct,  and  refused 
to  make  the  proposed  amendment;  and  the  appellees 
then  removed  the  proceedings,  by  certiorari,  into  tbe  cir- 
cuit court.  The  circuit  court  overruled  a  demurrer  to 
the  petition,  reversed  the  judgment  of  the  commission- 
ers' court,  and  ordered  the  assessment  to  be  amended  as 
asked  by  the  petitioners.  Exceptions  were  reserved  on 
the  part  of  the  State  to  these  several  rulings  of  the  cir- 
cuit court,  and  they  are  here  assigned  as  error. 

M.  A.  Baldwin,  Attoruey-General,  for  the  State. 
John  A.  Elmore,  contra. 

STONE,  J.— [Feb.  20, 18G2.]— Section  391  of  the  CoTe 
declares,  that  "Taxes  are  to  be  assessed  by  the  assessor 
in  each  county,  on  and  from  the  following  subjects,  and 
at  the  following  rates :"  *  *  *  -  *  Subd. 
"17.  On  the  gross  amount  of  all  auction  sales  made  in 
or  during  the  tax  year  preceding  the  assessment,  except 
cargo  sales  of  foreign  imports,  those  made  by  executors, 
administrators  and  guardians,  as  such,  by  order  of  court, 
or  under  legal  process,  and  under  any  deed,  will  or  mort- 
gage ;  on  every  hundred  dollars,  and  at  that  rate,  one 
dollar." 

The  present  record  raises  the  question,  whether  this 
tax  of  one  per  cent,  is  to  be  paid  by  the  auctioneer,  or  by 
tbe  owner  of  the  property  sold.  We  hold  that  the  auc- 
tioneer is  the  party  who  must  pay  this  tax,  for  the  fol- 
lowing reasons:  Section  802  of  the  Code  declares,  that 
"  All  persons  engaged  in  any  business  or  pursuit,  the  re- 
ceipts, sales,  commissions  of  which,  or  capital  employed, 
are  subject  to  assessment  under  the  preceding  section, 
must  keep  correct  accounts  of  the  same  for  the  tax  year 
preceding  such  assessments,  and  exhibit  the  results  of  the 
same  to  the   tax   collector,  verified  by  oath.-'     We  Bup- 


104  SUPREME  COURT 


Xinnoy  v.  The  State. 


this  is  a  verbal  inaccuracy,  and  that  the  meaning  is, 
that  it  shall  be  exhibited  to  the  tax  assessor.  Thus  con- 
ttrued,  it  would  6eem  to  contemplate  that  the  subjects  of 
taxation  should  be  rendered  in  by  the  auctioneer.  It  is 
difficult  to  conceive  why  taxables  should  be  rendered  in 
by  one  person,  and  the  assessments  made  against  another. 
But  section  410^ subdivision  3,  is  still  more  explicit.  It 
declares,  that  assessments  are  to  be  made  "on  all  sales 
and  purchases  subject  to  taxation,  to  the  person  making 
the  same  or  his  agent,  in  the  county  in  which  such  sales 
or  purchases  are  made."  In  addition  to  these  plain  in- 
dications in  the  statutes,  we  can  well  conceive  of  a  legis- 
lative policy  which  would  select  a  resident  auctioneer, 
rather  than  a  possibly  non-resident  proprietor,  from  whom 
to  collect  the  assessments  on  auction  sales.  This  policy, 
we  think,  was  carried  into  the  legislation. 

The  judgment  of  the  circuit  court  is  reversed:  and 
this  court,  proceeding  to  render  such  judgment  as  the 
circuit  court  should  have  rendered,  doth  herein-  order 
and  adjudge,  that  the  petition  of  the  appellees,  Messrs. 
Lee  .V  Norton,  be  dismissed,  at  their  costs,  in  the  circuit 
court  and  in  this  court. 


KINNEY  vs.  THE  STATE. 

[iN'DlCTMHS'T    FOB    D1STURBAKCB  OF    RELIGIOUS    WORSHIP.] 

1.   Wh-at  conntitu  e. — To  constitute  an  interruption  or  disturb- 

ance of  "an  assemblage  of  people  met  for  religions  worship," 
(Code.  \  .".'j.">7.)  it  i--  not  necessary  that  the  interruption  or  disturb- 
ance should  be  made  daring  the  progress  of  the  religious  services; 
if  maffl  after  the  conclusion  ol  the  services  and  the  dismissal  of 
the  congregation,  but  while  ;i  portion  of  the  people  still  remain  in 
the  house,  and  before  a  reasonable  time  has  elapsed  for  their  dis- 
persion, the  offense  is  complete. 


OF  ALABAMA.  105 


Kinney  v.  The  State. 


From  the  Circuit  Court  of  Winston. 
Tried  before  the  Hon.  Wm,  S.  Mudd. 

The  indictment  in  this  case  charged,  that  the  prisoner 
"  willfully  interrupted  or  disturbed  an  assemblage  of  peo- 
ple met  for  religious  worship,  by  noise,  profane  discourse, 
or  rude  or  indecent  behavior,  at  or  near  the  place  of  wor- 
ship." "On  the  trial,"  as  the  bill  of  exceptions  states, 
"the  prosecution  adduced  testimony  tending  to  show  that, 
within  twelve  months  before  the  finding  of  the  indict.- 
ment/and  in  said  county  of  Winston,  the  defendant will- 
fully interrupted  and  disturbed  an  assemblage  of  people 
met  for  religious  worship,  by  using  profane  language, 
cursing  and  swearing,  and  by  loud  noise  and  rude  beha- 
vior, at  or  near  the  place  of  worship.  The  defendant 
proved,  that,  at  the  time  of  said  interruption  and  dis- 
turbance as  aforesaid,  the  religious  services  had  been  con- 
cluded, the  preacher  had  dismissed  the  congregation, and 
the  people  were  about  to  disperse,  a  small  portion  of 
them  having  gone  into  the  yard,  while  the  remainder 
were  still  in  the  house  where  the  religious  services  were 
held.  On  this  evidence,  the  defendant  asked  the  court 
to  instruct  the  jury,  that,  if  they  believed  the  evidence? 
they  must  find  the  defendant  not  guilty;  which  charge 
the  court  refused  to  give,  and  the  defendant  excepted  to 
its  refusal." 

E.  W.  Parksr,  for  the  prisoner., 

M.  A.  Baldwin,  Attorney-General,  contra. 

R.  W.  WALKER,  J.— [Jan.  14,  18G2.]— Section  3257 
of  the  (-ode  enacts,  that  "  any  person,  who  willfully  in- 
terrupts or  disturbs  any  assemblage  of  people  met  for  re- 
ligious worship,  by  noise,  profane  discourse,  rude  or  inde- 
cent behavior,  or  by  any  other  act  at  or  near  the  place  of 
worship,  must,  on  conviction,  be  fined  not  less  than  twenty 
or  more  than  two  hundred  dollars,  and  may  be  impris- 
oned not  more  than  six  months." 

In  Ten  i  I  he  statute  ou  this  subject  provided,  that 

"  if  any  prison  shall  interrupt  a  congregation  assembled 
8 


106  SUPREME  COURT 


Kinney  v.  The  State. 


for  the  purpose  of  worshipping  the  Deity,  such  person 
shall  be  dealt  with  as  a  rioter  at  common  law."  On  the 
trial  of  an  indictment  founded  on  the  act  just  cited,  it 
wa«  proved  that,  after  the  services  were  over,  and  the 
congregation  had  been  dismissed,  and.  begun  to  leave, 
some  being  still  in  the  church,  some  in  the  churchyard, 
and  others  left  for  home,  the  defendant,  with  others,  ex- 
cited and  disturbed  the  congregation,  by  cursing,  swear- 
ing, lighting,  &c,  there  then  being  present  a  good  many 
ladies  and  gentlemen.  Upon  these  facts,  the  defendants 
asked  the  court  to  charge,  that  if  the  worship  had  closed, 
and  the  congregation  had  been  dismissed,  and  had  begun 
to  disperse,  part  having  left  the  ground  at  the  time  the 
disturbance  occurred,  then  defendants  could  not  be  con- 
victed. This  the  court  refused,  but  charged  the  jury, 
that  if  the  worship  had  ceased,  and  the  congregation  had 
been  dismissed,  then,  unless  a  reasonable  time  had  elapsed 
for  the  dispersion  of  the  congregation  after  such  dismis- 
sion, the  defendants  would  be  guilty,  if  they  did  acts  cal- 
culated to  disturb  those  on  the  ground.  On  appeal  to  the 
supreme  court,  it  was  decided,  that  there  was  no  error  in 
the  rulings  of  the  circuit  judge  ;  the  court  holding,  that 
the  act  not  only  protects  from  disturbance  a  congrega- 
tion while  actually  engaged  in  worship,  but  extends  its 
protection  also  to  all  congregations  which  had  assembled 
for  the  purpose  of  worshipping  ;  and  that  this  protectiou 
•continues,  from  the  time  the  congregation  so  assembles, 
until  it  disperses  and  ceases  to  be  a  congregation. — Wil- 
liams v.  State,  3  Sneed,  313 

This  decision,  which  we  readily  adopt  as  a  correct  con- 
struction df  our  own  statute,  is  precisely  in  point  in  the 
present  case,  and  shows  that  the  court  did  not  err  in  re- 
fusing the  charge  asked  by  the  defendant. 

The  language  of  the  Virginia  act  on  the  same  subject 
is:  "If  any  person  shall,  on  purpose,  maliciously,  or  con- 
temptuously, disquiet,  or  disturb  any  congregation  assem- 
bled in  any  church,  meeting-house,  or  other  place  of  reli- 
gious worship,"  &c  And  it  has  been  held  in  that  State, 
that  the  statuteis  applicable,  not  only  to  disturbances  made 


OF  ALABAMA. 107 

Cheek  v.  The  State. 


while  the  religious  services  are  progressing,  but  also  to 
disturbances  made  while  the  congregation  is  assembled 
for  worship,  though  it  be  at  night,  on  a  Methodist  camp- 
ground, after  the  services  are  over  for  the  day,  and  the 
worshippers  are  retired  to -rest. — Commonwealth  v.  Jones, 
3  Gratt.  624. 

Judgment  affirmed. 

Stone,  J.,  not  sitting. 


CHEEK  vs.  THE  STATE. 

[indictment  against  ounfr  fo::  negligent  treatment  of  slave?.] 

1.  Johuhr  of  offenses  in  indictment. — An  indictment,  vyhieh  charges 
that  the  prisoner,  heing  the  owner  of  certain  slaves,  "did  fail  (o 
provide  them  with  a  sufficiency  of  healthy  food  or  necessary  cloth- 
ing, or  to  provide  for  them  properly  in  sickness  or  old  age,"  <■'•''  !'". 
§§3297-98,)  is  not  objectionable  for  duplicity,  although  a  conviction 
might  be  had  on  proof  of  negligent  treatment  in  any  one  of  the 
specified  particulars;  nor  does  the  joinder  of  the  names  ofsevi  1  al 
slaves,  in  the  same  count,  render  it  obnoxious  to  that  objection, 
although  a  conviction  might  be  had  on  proof  of  the  negligent  treat- 
ment of  any  one  of  them. 

2.  Description  of  slaves  in  indictment. — In  such  an  indictment,  slaves 
whose  names  are  to  the  grand  jurors  unknown,  maybe  thus  de- 
scribed, if  by  the  use  of  due  tliligenco  their  names  cannot  I 
certained  ;  but,  if  it  is  shown  on  the  trial  that,  at  the  time  the 
indictment  was  found,  their  nai  in  fact  known,  or  could 
havi  tertained  by  due  diligence,  the  defendant  will  be  en- 
titled to  an  acquittal  as  to  them  ;  yet  proof  of  the  Bingle  fuel  that 
their  namo#  were  known  at  the  time  of  the  trial,  without  more, 
would  not  entitle  him  to  an  acquittal. 

. — Under  such  an  indictment,  chargii 
negligent  treatment  of  several  slaves,  if  it  should  appear  on  the 
trial  that  the  offenses aato  the  Beveral  slav<  I 

be  the  duty  of  the  court  to  compel  an  election  by  the  pr 
yet,  if  all  the  slaves  arc  on  the  same   plantation,  and   tli 
ant's  conduct  towards  all  of  them  in  the  aggregati 
a  conviction,  there  is  no  ground  for  such  compul  ction. 


1  i  SUPREME  COURT 


ek  v.  The  State. 


■■  rt. — A  person  who  has  served  in  the  ea- 
■:\  plantations  for  sixteen  months,  is  compe- 
ive  his  opinion,  as  an  expert,  in  reference  to  the  amount  of 
I  which  is  sufficient  for  a  plantation  slave. 

nee,  as  showing  quantity  of  meat  furnisher!  to  defend' 
The  indictment  having  been  found  in  May,  18G0,  and 
the  prosecution  having  proved  that,  in  the  year  1859,  all  the  meat 
on  the  defendant's  plantation  was  consumed  by  midsummer,  and 
that  in. -a',  was  afterwards  supplied  to  the  plantation  from  his  resi- 
dence,— it  is  competent  for  the  defendant  to  prove  that, in  Decent* 
1858,  (otttside  of  the  time  covered  by  the  indictment,)  a  speci" 
lie  1  number  of  hogs  were  killed  on  the  plantation,  the  meat  of 
which  was  kept  there  lor  the  usfl  of  the  slaves. 

From  the  Circuit  Court  of  Lowndes. 
Tried  before  the  Hon.  John  K.  Henry. 

The  indictment  in  this  cane  ayus  found  at  the  May  term, 
.  and  continual  but  a  single  count,  which  was  as  fol- 
lows:  "The  grand  jurors  of  said  county  charge,  that,  be- 
fore the  finding  of  this  indictment,  Randall   Gheek  was 
t.  or  person  standing  in  (hat  relation  to  certain 
3,  to-wit,  Bob,  Anderson,  and  Mosc,  and  divers  others 
whose  names  are  lo  the  grand  jiorors  aforesaid  nn 
and,  as  such,  did  fail   to  provide  them  with  a  sufficiency 
Of  healthy  food  or  necessary  clothing,  or  to  provide  for 
them  properly  in  sickness  or  old   ag  The  defendant 

demurred  to  the  indictment,  but  the  causes  of  demurrer 
assigned  are  not  stated  in  the  record.  The  court  over- 
ruled  t!,-'  demurrer,  and  he  the.n  pleaded  not  guilty. 

the  trial,  as  appears  from  the  bill  of  exceptions,  the 
State  introduced  one  Snelgrow  as  a  witness,  who  was  the 
■  mi  tie-  defendant's  plantation  in  Lowndes  county, 
from  February,  until  October.  1850,  and  who  testified, 
that  among  the  slaves  on  said  plantation  was  cme  named 
\],  e,  another  named  Anderson;  and  two  named  Bob, — 
one  being  called  "Old  Bob,"  and  the  other  "Short  Bob." 
"The  State  then  proved,  by  said  witness,  the  amount  of 
food  which  was  furnished  to  said  Mose  during  the  period 
of  twelve  months  before  the  indictment  was  found,  for 
the  purpose  of  showing  that  he  was  not  sufficiently  fed; 


OF  ALABAMA.-'  __  109 

Cheek  v.  The  State. 


and  the  proof,  as  to  Mose,  tended  to  show  this  fact.  The 
State  then,  proposed  to  make  the  same  proof  as  to  An- 
derson and  the  two  Bobs;  to  which  the  defendant  ob- 
jected, on  the  ground  that  the  State  had  elected  to  pro- 
ceed for  the  offense  of  not  sufficiently  feeding  the  slave 
Mose,  and  because  the  two  Bobs  were  not  sufficiently  de- 
scribed in  the  indictment;  which  objections  the  court 
Overruled,  and  admitted  the  evidence,  and  the  defendant 
excepted."  The  court  also  allowed  the  prosecution, 
against  the  defendant 's  objection,  to  make  the  same  proof 
in  reference  to  the  other  slaves  on  the  defendant's  said 
plantation,  not  named  in  the  indictment;  and  the  de- 
fendant reserved  an  exception  to  the  admission  of  this 
evidence. 

The  only  evidence  adduced  by  the  prosecution,  in  ref- 
erence to  the  manner  in  which  the  slaves  were  fed,  was 
the  testimony  of  said  Snelgrove,  who  stated  that,  "while 
he  was  overseer  on  said  plantation,  said  slaves  were  each 
allowed,  l"y  the  direction  of  the  defendant,  onjy  one 
quarter  of  a  pound  of  bacon  per  day,  and  no  other  meat, 
and  were  not  allowed  any  bacon  at  all  on  Sunday;  that 
they  were  also  allowed  as  much  corn  meal  as  they  wanted, 
and,  <luring  the  summer,  a  very  few  vegetables  and  roast- 
ing-ears,  and  about  a  pint  of  butter-milk  per  day,  and 
sometimes  a  little  butter."  It  was  also  shown  that  said 
Snelgrove,  in  addition  to  the  time  he  was  in  the  defend- 
ant's employment,  had  only  served  as  an  overseer  about 
eight  months  during  the  year  1858.  The  court  allowed 
him  to  testify,  against  the  defendant's  objection,  "that 
one  and  a  half  pounds  of  bacon  per  week  was  not,  in  his 
opinion,  sufHcient  for  each  Of  said  slaves,  with  the  other 
food  famished  to  them  as  above  stated;  and  that 
than  three  pounds,  or  three  and  a  half,  per  week,  WHS  not 
lit  quantity  of  baron  for  a  plantation  slave;"'  and 
to  the  admiasion  of  this  evidence  the  defendant  alto  re- 

!  an  exception.      Snelgrove  having  testified,  ou 
part  of  the  State,   ''that  all  the   meat  on  the  defi 
plantation  was  consumed  by  midsunTmer,  L859,  and 
erwarda  carried  there  from  the  defend;;: 


HO  SUPREME  COURT 


Cheek  v.  The  State 


the  defendant  offered  to  prove  that,  "in  Decem- 
38,  he  ho£  thirty-three  hogs  killed  on  said  planta- 
for  the  use  of  the  plantation,  and  that  the  meat  (the 
:ity  of  which  was  shown)  was  kept  on  the  place." 
The  court  rejected  this  evidence,  and   the  defendant  ex- 
cepted.    After  the   evidence   was  closed,  the  defendant 
again  asked  the  court  to  compel  the   State  to  elect  for 
which  one  of  the  slaves  named  in  the  indictment  it  would 
proceed,  and  reserved  an  exception  to  the  refusal  of  the 
court  to  compel  such  election. 

Baixe  &  NeSmith,  for  the  defendant. 

M.  A.  Baldwin,  Attorney-General,  contra. 

A.J.  WALKER,  C.  J.— [Jan.  21,  18G2.]— The  statute 
under  which  the  indictment  was  framed,  is  as  follows; 
r,  or  other  person  standing  towards  the  slave 
in  that  relation,  who  inflicts,  or  allows  another  to  inflict 
on   him,  any  cruel  punishment,  or  fails  to  provide  him 
witli  a  sufficiency  of  healthy  food  or  necessary  clothing, 
or  to  provide   for  him  properly  in  sickness  or  old  age,  or 
treats  him  in  any  other  way  with  inhumanity,  on  convic- 
tion thereof,  must  he  fined  not   less  than    twenty-five,  or 
more  than   one  thousand  dollars."     Four  of  the  penal 
lis   mentioned   in  this  statute   are  charged  in  one 
count.     The  allegations  of  those  omissions  are  joined 
conjunctively;   for  to   say  of  one,  that  he  failed   to   do 
either  of  two  or  more  things,   implies  a  failure  in   all. 
atute  which  authorizes  the  charging,  in 
Hive,  of  offenses  of  the  same  character  and  sub- 
to  the  same  punishment,  has  no  influence  upon  the 
propriety   oi    the    joinder   in    this   case. — Code,   §   3506. 
But,   without   the   aid  of  any  statute,  charges  of  the  dif- 
ferent penal  acts  and   failures  mentioned  in  the  section 
above  copied  may  be  joined  in  a  single  count.     They  are 
descrihed  in  the  game   clause,  and  subjected  to  the  same 
punishment.     The  statute,  in  stating  several  acts  of  kin- 
,  dred  criminality,  in  the  disjunctive,   and  prescribing  a 
punishment  for  the  commission  of  one  or  the  other  of 


OF  ALABAMA.  Ill 


Cheek  v.  The  State. 


them,  is  understood  to  condemn  one  offense,  and  to  spe- 
cify different  modes  of  committing  it.  It  has,  therefore, 
been  decided,  that  the  joinder  of  the  charge  of  the 
respective  acts  in  the  same  count  is  rather  a  charge  of 
the  same  offense  in  the  various  modes  of  its  commission, 
or  in  the  different  grades  of  it,  and  that,  therefore;  the 
count  is  not  obnoxious  to  the  objection  of  duplicity.  The 
accused  may  be  convicted  of  either  of  the  specified  modes 
of  offense. — Stevens  v.  Commonwealth,  6  Metcalf,  241; 
Murphy  v.  State,  G  Ala.  840;  1  Bishop  on  Cr.  Law,  5^5: 
Moouey  v.  State,  8  Ala.  828;  Ben  v.  State,  22  Ala.  9; 
Ward  v.  State,  lb.  10;  Swallow  v.  State,  ib.  20;  State  v. 
^Slocum,  8  •Blackford,  315;  Begin  a  v.  Bowen,  1  Car.  k 
Kir.  501;  Iowa  v.  Abrahams.  0  Iowa,  (Clark,)  117;  Long 
v.  State,  12  Georgia,  293;  State  v.  Meyer,  1  Spears,  305. 
The  indictment  charges  the  commission  of  the  offense 
in  reference  to  three  slaves  designated  by  name,  and 
divers  others  to  the  grand  jurors  unknown.  The  perpe- 
tration of  the  different  species  of  offense  specified  in 
Section  3297,  upon  an}-  one  slave,  is  indictable.  That  is 
made  clear,  alike  by  the  language  of  that  section,  and  of 
the  next  following  section,  which  declares,  that  it  shall 
'•be  sufficient  to  charge  that  the  defendant  did  inflict  on 
ive  any  cruel  punishment,  or  that  he  failed  to  provide 
with  a  sufficiency  of  healthy  food,"  &c.  That,  two 
or  more  distinct  offenses  can  not  be  joined  in  the  same 
count,  is  a  general  rule  of  the  law  ;  but  there  arc  excep- 
tions to  it.  One  of  these  exceptions  is,  that  the  different 
offenses  which  are  the  result  of  the  same  act,  and  are 
parts  of  the  same  transaction,  may  be  joined  in  the  same 
count.— I  Archbold's  Cr.  PI.  95-90.  Practical  illustra- 
tions of  this  exception  are  found  in  indictments  for  bur- 
glary and  larceny  after  entering  the  house.-  Barbour's 
Cr.  Law,  319;  Arch.  Cr.  L.  96.  Then,  whether  or  Dot 
the  indictment  in  this  case  is  obnoxious  to  the  objection 
iplicity,  depends  upon  the  question,  whether  the 
as  to  (he  different  slaves  were  parts  of  the  lame 
transaction,  or  the  result  of  the  same  conduct  on  the 
part  of  the  defendant.     Duplicity  is  an   objection  which 


1 1 2 SUPREME  COURT 

Cheek  v.  The  State. 


must  affirmatively  appear  from  the  indictment.  It  is  not 
an  objection  to  an  indictment,  that  the  offenses  it  charges 
may  belong  to  distinct  transactions.  Does  it,  then, 
affirmatively  appear  in  this  case,  that  the  distinct  specifi- 
cations of  offense  as  to  the  different  slaves  were  the 
result  of  distinct  acts  on  the  part  of  the  accused?  We 
think  it  does  not.  It  is  conceded,  that  the  distinctness 
of  the  causes  of  offenses  might  appear  from  the  nature 
of  them.  There  are  offenses  which  are  incapable  of  a  . 
common  origin.  Such  is  not  the  character  of  the  offenses 
alleged  in  this  case.  A  planter  may,  by  an  order,  or  act, 
or  omission,  common  in  its  effects,  withhold  from  all  his 
slaves  a  sufficiency  of  healthy  food  and  necessary  clothing,  # 
and  from  his  sick  and  aged  slaves  a  provision  suitable 
to  their  respective  conditions.  Where  this  is  the  case,  a 
joinder  of  the  offenses,  in  reference  to  all  the  slaves 
coming  within  the  operation  of  the  common  cause,  is 
permissible.  No  hardship  from  such  a  joinder  results  to 
the  accused;  for  his  defense,  like  the  charge,  centres  in 
a  common  point.  Indeed,  he  derives  an  obvious  advan- 
tage from  the  joinder,  in  meeting  in  a  single  count  the 
Accumulated  charge  of  misconduct  in  reference  to  all  the 
slaves  affected,  rather  than  incurring  the  vexation  and 
peril  of  numerous  separate  prosecutions. — State  v.  John- 
son, 3  Hill's  Law  (S.  C.)  R.  1.  If  it  should  be  disclosed 
in  the  progress  of  the  trial,  that  the  offenses  as  to  the 
different  slaves  were  distinct,  the  court  would,  by  com- 
pelling an  election  on  the  part  of  the  State,  protect  the 
accused  from  the  injury  of  being  compelled  to  answer  as 
to  diverse  transactions  under  the  same  count. — People  v. 
Adams,  17  Wendell,  47 ;">;  Regina  v.  Bleasdale,  2  Car.  & 
Kir. 

We  have  looked  into  the  books,  and  find  the  leading 
principle  upon  which  we  have  proceeded  supported  by 
several  decisions.  In  Rex  v.  Benfield  and  Saunders,  : 
(•J  Burr.  980,)  the  court  sustained  a  count  which  charged 
the  ringing  in  the  street  of  songs  libelous  of  the  prose- 
cutor, and'of  his  son,  and  of  his  daughter.  In  Regina 
v.  (Jiddins  and  others,  (Car.  &  Marsh.  634,)  the  objection 


OF  ALABAMA.  113 


Cheek  v.  The  State. 


of  duplicity  was  overruled,  where  a  single  count  charged 
an  assault  upon  George  Pritchard  and  Henry  Pritchard, 
and  stealing  from  George  Pritchard  two  shillings,  and 
from  Henry  Pritchard  one  shilling  and  a  hat,  on  a  given 
day.  It  is  said  in  1  Hale's  Pleas  of  the  Crown,  531,  that 
if  one  at  the  same  time  steals  goods  of  A,  of  the  value 
of  sixpence,  goods  of  B,  of  the  value  of  sixpence,  and 
goods  of  C,  of  the  value  of  sixpence,  being  perchance  in 
one  bundle,  or  upon  a  table,  or  in  one  shop,  this  is  grand 
larceny,  because  it  is  one  entire  felony.  So,  in  Thomas' 
case,  reported  in  2  East's  Cr.  L.  934,  a  count  was  sus- 
tained, which  alleged  the  uttering  and  publishingas  true 
twenty-four  false  forged  and  counterfeited  receipts  for 
money. 

In  a  still  later  case  in  England,  the  accused  was  charged 
with  stealing  coal  from  the  mines  of  thirty-one  different 
proprietors  which  was  brought  up  through  a  shaft  leased 
by  him  ;  and  the  indictment  was  held  not  to  be  obnox- 
ious to  the  objection  of  duplicity. — Regina  v.  Bleasdale, 
2  Car.  &  Kir.  765.  It  appeared  that  the  different  larce- 
nies had  been  committed  by  undermining  from  the 
defendant's  shaft;  and  the  court  refused  to  compel  the 
prosecutor  to  elect,  and  decided  that,  so  long  as  the  coal 
was  gotten  from  one  shaft,  it  was  one  continuous  taking, 
though  the  working  was  carried  on  by  different  levels 
and  cuttings,  and  into  the  lands  of  different  people.  The 
court,  however,  advised  the  prosecution  to  confine  its 
attention  to  the  taking  from  one  owner. 
.  In  the  case  of  the  People  v.  Adams,  (17  Wend.  475,)  it 
was  held,  that  an  indictment,  which  alleged  an  illegal  sale 
of  different  kinds  of  lirpiors,  on  a  given  day,  to  divers 
persons,  was  not  bad  for  duplicity,  and  that  it  must  be 
understood  as  averring  only  one  transaction.  The  su- 
preme court  of  Vermont  sustained  an  indictment,  which 
charged  that  the  defendant  broke  and  entered  one  man's 
house  with  intent  to  steal  his  goods,  and,  having  80  en- 
tered, stole  another  man's  goods.  —  Btate  v.  Brady, 
14  Verm.  •'<"■">.  The  decision  is  put  upon  the  ground, 
that  the  burglary  and  larceny,  although  to  the  detriment 


114  SUPREME  COURT 


Cheek  v.  The  State. 


of  different  persons,  belonged  to  the  same  transaction, 
and  might  be  joined  in  the  same  count.  So,  the  supreme 
court  of  Rhode  Island  decided,  that  a  criminal  complaint 
of  an  assault  on  two  persons  was  not  bad,  considering 
the  assault  on  both  the  result  of  the  same  act. — Kinney 
v.  State,  5  Rhode  Isl.  385.  And  in  Commonwealth  v. 
Williams,  (Thacher's  Cr.  Cas.  84,)  it  was  held,  that  where 
goods,  belonging  to  different  persons,  are  stolen  at  one 
time  and  place,  the  offense  may  beset  forth  in  one  count. 
So,  also,  in  this  State,  it  has  been  decided,  that  a  count 
which  charged  that  the  defendant  administered  poison  to 
three  persons,  is  not  bad  for  duplicity. — Ben  v.  State, 
22  Ala.  9.  See,  also,  Shaw  v.  State,  18  Ala.  547 ;  Rasmek 
v.  Commonwealth,  2  Vir.  Cas.  856.  See,  also,  Com.  v. 
Tuok,  20  Pick.  356. 

We  think  the  joinder  in  this  case  is  authorized  by  the 
principle  to  be  extracted  from  the  cases  above  collected, 
and  we  decline  to  sustain  the  objection  for  duplicity. 

[2.]  It  is  further  objected  to  the  indictment,  that  it 
charges  an  omission  of  duty,  not  only  as  to  three  named 
slaves,  (Bob,  Anderson  and  Mose,)  but  as  to  divers  others, . 
whose  names  were  to  the  jurors  unknown.  In  the  cases  of 
Francois  v.  State,  (20  Ala.  83,)  Brown  v.  Mayor  of  Mobile, 
(23  ib.  722,)  and  Starr  v.  State,  (25  ib.  38,)  it  was  decided, 
tha,t  such  a  mode  of  averment  was  not  permissible,  where 
the  offense  was  trading  with  slaves.  The  reason  given 
for  those  decision*  is,  that  the  absence  of' the  master's 
consent  was  an  element  of  the  offense,  and  that  the 
accused  could  not  be  prepared  to  defend  himself,  by 
showing  the  necessary  consent,  unless  he  had  information 
of  the  name  of  the  slave  with  whom  the  alleged  trading 
was  done.  In  the  first  named  of  those  cases,  the  court 
say  :  "  If  the  trading  with  a  slave  was  an  offense,  without 
any  other  constituent,  we  see  no  reason  why  the  indict- 
ment might  not  allege  his  name  as  unknown  to  the  jurors, 
if  such  was  the  fact,  without  in  the  slightest  degree  im- 
pairing the  ability  of  the  accused  to  defend."  It  is  ap- 
parent, therefore,  that  those  decisions  lay  down  a  rule 
applicable  to  a  particular  class  of  cases,  and  not  a  general 


OF  ALABAMA.  115 


Cheek  v.  The  State. 


principle  of  criminal  pleading.  We  think  the  general 
rule  is,  that  where  the  names  of  third  persons  are  un- 
known, and  cannot  be  ascertained,  they  may  be  mentioned 
in  the  indictment  as  persons  whose  names  are  to  the  grand 
jurors  unknown. — 1  Ch'itty  on  Pleading,  212;  lArch.  Cr. 
PI.  80,  81,  82;  Wharton's  Am.  Cr.  Law,  §  251.  If  it 
should  appear  that  the  name  was  in  fact  known  when 
the  indictment  was  found,  or  could  have  been  ascertained 
by  the  use  of  due  diligence,  it  seems  that  the  defendant 
would,  upon  the  trial,  be  entitled  to  an  acquittal  as  to 
the  slaves  so  improperly  described  as  unknown. — See  the 
authorities  above.  We  must,  for  these  reasons,  hold  the 
indictment  on  its  face  unobjectionable,  because  the  names 
of  some  of  the  slaves  are  stated  as  unknown  to  the  jurors. 

It  appears,  however,  that  on  the  trial  evidence  was  in- 
troduced, charging  the  accused  as. to  slaves  whose  names 
were  at  that  time  known,  but  are  not  mentioned  in,  the 
indictment.  It  is  not  shown,  however,  that  the  names  of 
those  slaves  were  not  unknown,  and  incapable  of  ascer- 
tainment, at  the  time  ot  the  finding  of  the  indictment. 
If  they  were  unknown,  and  incapable  of  ascertainment, 
when  the  indictment  was  found,  the  defendant  would  not 
be  entitled  to  an  acquittal  in  reference  to  them,  because 
their  names  were  afterwards  ascertained,  and  were  known 
at  the  time  of  the  trial. — Com.  v.  Ilendire,  2  Gray,  503; 
Whnr.  Am.  Cr.  Law,  §251.  The  bill  of  exceptions  is  not 
inconsistent  with  the  supposition,  that  the  names  were 
not  discovered,  and  not  capable  of  discovery,  until  after 
the  indictment  was  found.  We  can  predicate  no  ruling, 
in  favor  of  the  defendant,  upon  the  isolated  fact,  that  the 
names  were  known  at  the  time  of  the  trial.  There  was 
no  error,  under  the  facts  disclosed,  in  allowing  proof  as 
to  fdaveR  not  named  in  the  indictment. 

[3.]  We  think  it  results  from  wdiat  we  have  already  said 
in  passing  upon  the  indictment,  that  the  court  was  not 
bound  to  restrict  the  State  to  a  prosecution  for  miscon- 
duct as  to  any  one  or  more  particular  slaves,  as  it  appears 
that  all  the  slaves  were  on  a  single  plantation,  and  the 
conduct  of  the  accused  as  to  the  slaves  on  the  plantation 


116  SUPREME  COURT 


Cheek  v.  The  State, 


a«- °regately  was  the  evidence  relied  on  for  his  conviction. 
The  conduct  of  the  accused  as  to  the  feeding  of  each  slave 
seems  to  have  been  a  part  of  one  general  transaction  ap- 
plicable alike  to  all.  If,  however,  it  had  appeared  on  the 
trial,  that  the  offenses  as  to  the  different  slaves  were  dis- 
tinct, it  "would  have  been  the  duty  of  the  court  to  compel 
an  election  on  the  part  of  the  prosecution,  and  thus  pro- 
tect the  accused  against  being  compelled  to  answer  as  to 
divers  transactions  under  the  same  count. 

[4.]  The  witness  introduced  by  the  State  had  been  an 
overBeer  on  plantations  for  sixteen  months.  When  we 
consider  the  closeness  of  observation,  which  overseers  on 
plantations  are  compelled  to  make,  of  the  food  consumed 
by  slaves,  and  of  their  health  and  capacity  to  labor,  wo 
are  constrained  to  regard  one  who  has  pursued  that  busi- 
ness for  sixteen  months  as  competent  to  give  his  opinion 
in  reference  to  the  amount  of  food  which  is  sufficient  for 
a  plantation  ilave. — City  Council  of  Montgomery  v.  Gil- 
mer &  Taylor,  33  Ala.  116;  Johnson  v.  State,  35  Ala.  370; 
McCreary  v.  Turk,  29  Ala.  244. 

[5. J  It  was  shown  that,  about  the  middle  ot  the  sum- 
mer of  1859,  the  meat  on  the  defendant's  plantation, 
where  .the  slaves  were  kept,  had  been  consumed,  and  that 
afterwards  meat  was  supplied  from  defendant's  residence. 
That  prdof  being  before  the  jury,  the  defendant  proposed 
to  show  that,  in  December,  1858,  a  certain  ascertained 
quantity  of  pork  had  been  provided  on  the  plantation, 
and  kept  on  it.  This  evidence,  which  was  rejected  by 
the  court,  had,  when  taken  with  what  had  been  previously 
proved,  a  manifest  bearing  upon  the  question  of  the 
amount  of  meat  which  the  negroes  had  received  and 
consumed  ;  and  the  court  erred  in  rejecting  it.  For  this 
error,  the  judgment  of  the  court  below  must  be  reversed. 

We  do  not  think  it  necessary  for  us  to  notice  the  other 
numerous  questions  of  evidence  presented  by  the  bill  of 
exceptions.  Some  of  them  arc  not  very  important,  and 
the  others  may  not  arise  again. 

Reversed  and  remanded. 

Stone,  J.,  not  sitting. 


OF  ALABAMA.  "  117 


Ex  parte  Coburn. 


Ex  Parte  COBURN. 

[.U'rUCATIoX  FOR  MANDAMUS  TO  PROBATE  JUDGE.] 

1,  Jurisdiction  of  probate  judge  to  revise  proceedings  of  magistrate  under 

peace  warrant. — A  probate  judge  has  no  jurisdiction,  on  / 
corpus  or  otherwise,  to  revise  an  order  made  by  a  justice  of  the 
peace,  requiring' a  party  to  give  security  to  keep  the  peace,  and 
directing  his  imprisonment  until  such  security  is  given:  the  only 
mode  of  revising  tiic  action  of  the  justice,  is  by  an  appeal  to  the 
circuit  court  under  section  8851  of  the  Code. 

Application  by  Thomas  S.  and  Edward  Coburn  for  a 
mandamus  to  the  probate  judge  of  Lowndes  county,  re- 
quiring him  to  allow  them  to  adduce  evidence  before  him, 
on  habeas  corpus,  showing  the  illegality  of  their  confine- 
ment by  the  sheriff  of  said  county,  as  hereinafter  stated. 
The  exhibits  to  the  petitioners'  application  showed,  that 
they  wore  arrested,  on  the  17th  December,  1861,  under  the 
warra  *  of  n  justice  of  the  peace,  issued  on  the  complaint 
of  one  Jacob  Bruce,  charging  them  with  a  breach  of  the 
peace  and  other  apprehended  violence;  that  on  the  trial 
before  the  justice,  he  made  an  order,  requiring  them  to 
give  security  to  keep  the  peace,  and  directing  they-  con- 
finement by  the  sheriff  until  such  security  was  given; 
that  they  then  applied  to  the  probate  judge  for  the  writ 
of  habeas  corpus,  which  was  granted;  that  on  the  hearing. 
of  the  habeas  corpus,  the  sheriff  returned  the  proceedings 
under  which  he  held  the  petitioners  in  confinement;  that 
the  probate  judge  thereupon  refused  to  examine  into  the 
validity  of  the  proceedings  had  before  the  justice,  and 
would  not  allow  the  petitioners  to  adduce  evidence  show- 
ing their  innocence  of  the  charge  imputed  to  them;  and 
that  they  reserved  exceptions  to  the  several  rulings  and 
decision  of  the  probate  judge. 

W.  F.  Witciieh,  for  the  motion. 


118  SUPREME  COURT 


Ex  parte  Coburn. 


K.  W.  WALKER,  J.— [Jan.  21,  1862.]— Where,  on 
complaint  to  a  justice  of  the  peace,  an  order  is  made  by 
him,  requiring  an  individual  to  give  security  to  keep  the 
peace,  and  directing  his  imprisonment  until  such  security 
is  given  ;  the  probate  judge  has  no  authority,  upon  habeas 
corpus  or  otherwise,  to  re-examime  the  case  upon  the 
facts,  and  discharge  the  prisoner.  The  only  mode  of  re- 
vising the  decision  of  the  justice  upon  the  facts,  is  by  an 
appeal,  under  section  3351  of  the  Code,  to  the  circuit 
court,  which  can  try  the  case  de  ?iouo,  and  either  confirm 
the  order  of  the  magistrate,  or  discharge  the  appellant. 
Code,  §  3354;  Tomlin  v.  State,  19  Ala.  9.  The  return  of 
the  sheriff  showed,  that  the  petitioners  were  held  in  cus- 
tody under  an  order  of  a  justice  of  the  peace,  requiring 
them  to  give  security  to  keep  the  peace;  and  as  this 
order  waa  not  open  to  objection  on  any  of  the  grounds 
specified  in  section  3744  of  the  Code,  the  probate  judge 
had  no  authority  to  inquire  into  its  legality  or  justice.-— 
Code,  §  3741;  Ex  parte  Burnett,  30  Ala.  461.  Consequently, 
the  probate  judge  was  right,  in  refusing  to  hear  evidence 
touching  the  guilt  or  innocence  of  the  petitioners,  and 
properly  dismissed  the  petition. 

Motion  refused. 

Stone,  J.,  not  sitting. 


OF  ALABAMA.  119 


Greene  v.  McGhee. 


GREENE  vs.  McGHEE. 

[APPLICATION  BTT  BHERirr  FOIi  MANDAMUS  AGAINST  COMPTROLLER.] 

1.  Compensation  of  sheriff  for  conveying  convicts  to  penitentiary, — In 
conveying  a  convict  to  the  penitentiary,  it  is  the  duty  of  the 
sheriff  to  travel  f  the  land  route  usually  traveled"  within  this  State, 
(Code,  \  3931  ;)  and  he  has  no  authority  to  carry  him  through 
other  States,  although  "  the  land  route  usually  traveled,"  betweep 
the  court-house  of  the  county  and  the  penitentiary,  may  be 
through  those  States. 

Appeal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  Hon.  Joiix  Gill  Shorter. 

Tut:  appellee  in  this  case,  who  was  the  sheriff  of  Law- 
rence county,  applied  to  the  circuit  court  for  a  i\iandamus 
to  William  J.  Greene,  the  comptroller  of  public  accounts, 
to  compel  that. officer  to  draw  his  warrant  on  the  State 
treasurer,  in  favor  of  the  petitioner,  for  the  amount 
claimed  by  him  as  compensation  for  conveying  a  convict 
to  the  penitentiary.  The  amount  claimed  by  the  pe- 
titioner was  $338  44;  the  distance  from  Moulton,  the 
county-site  of  Lawrence,  to  the  penitentiary,  being  esti- 
mate:! at  nine  hundred  and  fifty  miles,  by  way  of  the 
railroad  through  Chattanooga,  Tennessee,  and  Atlanta, 
Georgia,  to  Montgomery.  The  comptroller  refused  to 
draw  his  warrant  on  the  treasurer  for  more  than  $156  To, 
sting  that  the  petitioner  claimed  for  traveling  a  greater 
distance  than  the  law  authorized.  In  the  circuit  court, 
the  defendant  admitted  all  the  facts  stated  in  the  petition, 
••except  that  the  distance  between  Moulton  and  the 
penitentiary,  by  the  laud  route  usually  traveled,  was  nine 
hundred  and  fifty  miles;"'  consented  that  that  fact  should 
be  determined  by  the  court,  upon  evidence  to  be  adduced, 
and  waived  a  rule  nisi.  "Thereupon,  the  petitioner  in- 
troduced three  witnesses,  who  stated,  that  they  knew  the 
laud  route  usually  traveled  from  Moulton  to  the   peniten- 


120  SUPREME  COURT 


Greene  v.  McGhee. 


tiarv:  that  the  land  route  usually  traveled,  for  the  last 
thfee  voars,  has  been  by  way  of  the  railroad  to  Chatta- 
nooga,  Tennessee,  thence  by  railroad  to  Atlanta,  Georgia, 
thence  to  Montgomery,  and  thence  to  Wetnmpka  by 
land;  and  thai  the  distance  by  that  route,  going  and  re- 
turning, is  more  than  nine  hundred  and  fifty  miles.  Said 
witnesses  further  stated,  that  there  was  a  nearer  land 
route  through  the  State  of  Alabama,  which  was  not  di- 
rect, and  which  was  sometimes,  but  very  seldom,  traveled, 
and  was  not  the  land  route  usually  traveled."  On  this 
evidence,  the  circuit  court  awarded  a  mandamus ;  and  its 
judgment  is  now  assigned  as  error. 

M.  A.  Baldwin,  Attorney-General,  for  the  appellant. 
Samuel  F.  Rice,  contra. 

A.  J.  "WALKEK,  C.  J.-[Jan.  28,  1861.]— The  law  of 
this  State  allows  to  sheriffs  compensation  for  the  removal 
of  convicts  to  the  penitentiary,  at  a  specified  rate  for 
every  twenty  miles  of  the  distance  to  the  penitentiary  and 
back,  by  "  the  land  route  usually  traveled."— Code,  §  3981. 
The  land  route  usually  traveled,  from  Moulton,  the  county- 
site  of  Lawrence  county,  is  upon  the  line  of  railroad  passing 
through  a  portion  ot  Tennessee  and  Georgia;  and  the 
appellee,  being  the  sheriff  of  Lawrence  county,  claims 
compensation  according  to  the  distance  upon  that  route; 
there  being,  also,  another  land  route,  exclusively  within 
the  State  of  Alabama,  which  is  sometimes  traveled.  The 
question  of  this  case  is,  whether  he  is  entitled  to  com-. 
pensation  according  to  "the  usually  traveled  land  route, 
which  thus  passes  through  two  other  States,  or  according 
to  the  route  by  land  within  the  State  of  Alabama. 

Certainly,  if  the  section  of  the  Code  above  referred  to 
is  enforced  according  to  its  literal  import,  the  appellee 
would  be  entitled  to  compensation  for  the  distance  upon 
the  route  through  Tennessee  and  Georgia.  But  "the 
literal  interpretation  of  an  act  is  not  always  that  which 
either  reason  or  the  law  approves." — Thompson  v.  State, 
20  Ala.  54.     In  the  construction  of  statutes,  we  are  not 


OF  ALABAMA.  121 


Greene  v.  McGhee. 


to  adhere  to  the  letter,  at  the  expense  of  the  true  mean- 
ing and  intent  of  the  legislature. — Smith  on  Stat.  658, 
§  510.  It  is  proper  that  the  purpose  of  the  legislature, 
and  the  subject-matter  of  the  enactment,  should  be  con- 
sidered, that,  if  possible,  such  a  construction  should  not 
be  adopted,  as  would  lead  to  absurd  or  grossly  unjust 
consequences;  that  the  intention  should  be  hunted 
through  the  entire  act;  that  effect  should  be  given  to  all 
its  parts,  and  that  all  acts  upon  the  same  subject  should 
be  construed  in  pari  materia. — Smith's  Com.  on  Statutes, 
§§  518,  550,  574,  575;  Sedgwick  on  Stat,  aud  Con.  Law, 
238. 

The  main  purpose  of  the  article  in  the  Code,  in  which 
section  3031  is  found,  is  to  provide  for  the  safe  removal 
of  convicted  felons  to  tile  penitentiary.  Ihis  purpose  is 
patent  in  almost  all  the  sections  of  the  article;  and  the 
different  sections  are  framed  in  reference  to  eaeh  other,, 
so  as  to  provide  every  conceivable  safeguard  for  the  sale  de- 
livery of  the  convicts  at  the  penitentiary.  If  the  sheriff 
may  convey  the  prisoners  into  other  States  on  the  route, 
the  purpose  so  clearly  indicated,  and  for  the  accomplish- 
ment of  which  such  careful  provision  is  made,  may  be 
utterly  frustrated.  This  results  from  the  fact,  that  the 
authority  of  the  sheriff  to  execute  the  sentence  of  the 
court  is  necessarily  »confined  to  the  jurisdiction  of  this 
State.  The  question  of  the  effect  of  a  criminal  sentence, 
when  presented  in  the  judicial  tribunals  of  a  sister  State, 
has  been  several  times  discussed  by  the  courts  in  this 
country,  and  the  conclusions  attained  are  not  altogether 
harmonious. — Story,  on  Conflict  of  Laws,  §621;  Com- 
monwealth v.  Green,  17  Mass.  515;  Chase  v.  Blodgett, 
10  N.  II.  22.  It  is  not  necessary  for  us  to  enter  upon 
that  subject.  Whether  a  penal  sentence  does  or  does  not 
fall  within  the  provision  of  the  constitution  of  the  United 
States,  which  declares,  that  "full  faith  aud  credit  shall  be 
given  in  each  State  to  the  public  acts,  records  and  judicial 
'■(lings  of  every  other  State,"  is  an  immaterial  in- 
quiry here;  for,  however  that  may  be,  it  is  certain  that  a 
sheriff  of  the  State  of  Alabama  can  have  no  authority  to 
9 


122  SUPREME  COURT 


Greene  v.  McGhee. 


ffo  outside  of  the  limits  of  the  State,  in  the  execution  ot 
a  judicial  sentence.     His  authority  must  necessarily  cease 
when  he  leaves  the  jurisdiction  ot  the  State  of  Alabama, 
whether  that  authority  be  to  execute  a  judgment  iu  a 
civil    case,   or   the  sentence  in  a  criminal  case.     If  the 
statute  under  consideration  should  be  allowed  the  opera- 
tion contended  for  on  the  part  of  the  appellee,  we  should 
convict    the  legislature  of  the  absurdity  of  consulting 
especially  for  the  safe  removal  of  convicts  to  the  peniten- 
tiary, and  yet  authorizing  the  sheriff  to  carry  them  where 
his  authority  would  cease.     The  argument  already  made 
is  fortified  by  reference  to  other  sections  of  the  article 
devoted  to  the  subject  of  the  removal  of  prisoners  to  the 
penitentiary.     Section   3924  gives  to  the  sheriff,  in  the 
contingency  of  the  disability  of  any  of  his  guards  to  dis- 
charge their  duties,  the  power  to  summon  new  guards 
"in  any  county  through  which  he  may  pass."     Section 
3926    also  gives  him   authority  to    summon    additional 
guards,  when  it  is   rendered   necessary  by  an  attempt  to 
rescue  tin  convict,  or  other  unforeseen  danger;  and  sec- 
tion 3027  makes  it  a  misdemeanor,  for  any  person,  under 
fifty  years  of  age,  to  refuse,  without  a  good  excuse,  to 
obey   the  summons  of   him  as  a  guard  by  the  sheriff. 
Section  3928  places  the  guards  under  the  coutrol  of  the 
sheriff,  and  makes  disobedience  of  his  directions,  in  rela- 
tion to  the  safe  conveyance   of  the    prisoner,  a   misde- 
meanor.    Section  3929   exempts  the  officers  and  guards 
attending  the  prisoner  from  arrest,  except  for  felony  and 
breach  of  the  peace.     Section  8936  makes  it  the  duty  of 
jailors  to  receive  and   keep  prisoners  .on  their  way  to  the 
penitentiary;  and,  lastly,  section   3937  makes  it  an   in- 
dictable offense,  lor  the  prisoner  to  escape,  or  attempt  to 
escape.     All  these  provisions,  which  are  to  be  considered 
along  with  the  section  fixing  the  sheriff's  compensation, 
and  are  really  to  be  treated  as  parts  of  the  same  act  with 
that  section,  indicate   most  clearly  the  intention   that  a 
convict,  in  the  process  of  removal   to  the  penitentiary, 
should  be  kept  within  the  State  ;  and  they  become  utterly 
ineffective  and  inoperative,  as  soon  as  he  is  carried  out  of 


OF  ALABAMA.  123 


Greene  v.  McGhcc. 


the  State.  The  sheriff  could  not  summon  guards  in  an- 
other State ;  persons  so  summoned  could  not  he  indictable, 
under  91  Alabama  statute,  for  a  failure  to  obey;  neither 
the  guards  refusing  to  obey  the  sheriff's  directions  in  an- 
other State,  uor  the  convict  attempting  to  escape  in  an- 
other, could  be  amenable  to  the  criminal  laws  of  Alabama; 
the  qualified  exemption  of  the  sheriff  and  his  guards 
trom  arrest  could  not  be  effectual  beyond  the  limits  of  the 
State,  and  the  sheriff  could  not  avail  himself  of  the  jails 
in  another  State.  The  provisions  of  the  Code  upon  that 
subject  cannot  be  allowed  their  proper  operation,  if  the 
sheriff  is  permitted  to  convey  convicts  to  the  penitentiary 
through  other  States  ;  and  the  rules  of  construction,  which 
we  laid  down  at  the  outset  of  this  opinion,  require  us  to 
decide,  that  the  sheriff  has  no  authority  to  carry  a  pris- 
oner through  another  State,  and  is  not  entitled  to  com- 
pensation for  the  increase  of  distance  in  consequence  of 
his  doing  so,  although  he  may  go  upon  the  usually  trav- 
eled route.  The  laud  route  usually  traveled,  over  which 
he  must  pass,  is  the  route  within  the  State  usually  trav- 
eled. 

It  is  urged  against  the  foregoing  construction  of  the 
statute,  that  the  sheriff  is  required  to  make  affidavit  of 
the  number  of  miles  on  "the  land  route  usually  traveled ;" 
that  there  may  arise  cases,  in  which  there  is  no  usually 
traveled  land  route  within  the  State;  and  that,  in  those 
cases,  the  sheriff  would  be  unable  to  make  the  prescribed 
affidavit.  It  is  probable  that  there  are  court-houses  in  the 
Siatc,  from  which  there  is  no  route  to  the  penitentiary 
which  is  usually  traveled  through  its  entirety,  or  over 
which  persons  are  accustomed  to  pass  from  the  court- 
house to  the  penitentiary,  in  a  continuous  travel;  and  it 
may  be,  that  there  is  no  usual  continuous  travel  from  the 
court-house  of  Lawreuce  county  to  the  penitentiary, 
along  any  road  within  the  State.  But  we  cannot  think 
that,  in  such  cases,  it  was  the  intention  of  the  legislature 
to  exclude  the  sheriff  froth  any  compensation.  In  - 
cases,  a  route  leading  to  the  penitentiary,  and  the  differ- 
ent parts  of  which  are  usually  traveled,  and   which  i?  in 


124  SUPREME  COURT 


Kin;;  and  Wife  v.  Avery. 


direct  course  from  point  to  point,  is,  within 
the  meaning  of  the  law,  the  land  route  usually  traveled. 

Tl  cent  of  the  court  helow  is  reversed^uid   a 

judgment  must  be  here  rendered  dismissing  the  petition  ; 
and  the  appellee  must  pay  the  costs  of  this  court,  and  of 
the  court  below. 

K.  W.  Walker,  J.,  not  sitting. 


KING  and  WIFE  vs.  AVERY. 

fpiLL  IN  BQ0ITY  FOR  DIVISION  ANH  A.CCOVNT  OF  SLAVES.] 

1.  .!  -  ■,  intent  of  bill.— Under  the  act  of  Feb. 8,  1858,  "amendatory  o*i 
]n  •     in  chancery,"    (8ession    Acts,    1857-8,    p.  230,)  any 

ami  '!':i  bill,  either  as  to  par  ties  or  averments,  which  may 

mi   necessary  to  meet  tbejusti H  the  case,  or  to  meel  any 

of  tin-  proof  thai  will  authorize  relief,  must  be  allowed  by 
th.-  <■'.:  mcellor,  upon  Buch  terms  as  he  ra  iy  deem  jnsi  and  equi- 
table; but  tli  does  not  authorize  the  allowance  of  an 
amen  Iment,  which  would  convert  the  bill  of  the  wife  into  the  bill 
of  the  husband,  an  1  enables  him  to  a--  irt  a  claim  barred  by  the 
statute  of  limitation  j. 

''ii<  "I  Urn  mill  '■</,  J  bill.  —  ll  a  hill  is  filed,  by  mistake, 

in  the  name  of  the  wife  as  a  feme  sole,  to  recover  uer  interest  in 
slaves  which  accrued  to  her  before  her  marriage,  an  <i  which  vested 
in  the  husband  by  virtue  of  his  marital  rights;  and  an  amended 
bill  is  afterwards  filed,  in  the  name  of  husband  ami  wife,  alter  the 
Btatute  <>f  limitations  has  barred  the  husband's  right  of  action, — 
the  sutute  i  a  bar  to  the  relief  sought,  although  the  si  a  tut  or)  bar 
not  complete  when  the  original  bill  of  the  wife  was  filed. 

Aitkal  from  thu  Chancery  Court  of  Greene, 
JIc;,rd  before  the  Hon.  Jambs  B.  Clark. 

This  is  the  same  case  which  is  reported  in  28  Ala. 
267,  under  the  title  of  Hair,  a<\rrCr  $c,  r.  Avery,  et  al. 
The  original  bill  was  filed   in    January,  1852,  by  James 


OF  ALABAMA.  125 


King  and  Wife  v.  Avery. 


Hair,  as  the  administrator  of  Mildred  Walker,  deceased, 
and  Etherlin  T  Croxton,  against  Bryant  Avery  and  Pink- 
nev  Jones;  and  sought  a  division  and  account  of  certain 
slaves,  which  had  been  bequeathed  by  John  Hill,  the  ma- 
ternal grandfather  of  the  said  Mildred  and  Etherlin,  to 
his  daughter,  Mildred  Walker,  (the  mother  of  said  Mil- 
dred and  Etherlin,)  and  her  children,  and  which  were 
claimed  and  held  by  the  defendants  under  purchases  at 
execution  sale  against  the  husband  of  said  Mildred 
Walker.  The.  chancellor  sustained  a  demurrer  to  the 
bill,  for  want  of  equity;  but  his  decree  was  reversed 
by  this  court,  at  its  January  term,  1S56,  and  the  cause 
was  remanded. — See  23  Ala.  267. 

On  the  30th  May,  1857,  a  bill  of  revivor  was  filed,  in 
the  names  of  M.  V.  Lacy,  as  the  administrator  dc  bonis  hm 
of  said  Mildred  Walker,  and  James  King,  and  Etherlin 
T.  King,  his  wife;  alleging,  that  Hair  had  resigned,  and 
Lacy  had  succeeded  him,  as  administrator  of  said  Mildred, 
and  that  said  Etherlin  T.  had  married  said  James  King 
after  the  tiling  of  the  original  bill.  Answers  were  filed 
to  this  bill,  by  both  of  the  defendants,  on  the  2-ith  June,  . 
1857.  On  the  30th  June,  1858,  (two  days  after  an  order 
had  passed  for  the  publication  of  the  testimony,)  the  bill 
of  revivor  was  dismissed,  on  motion  of  the  complainants 
therein;  and  on  a  subsequent  da}'  of  the  same  term,  on 
the  affidavit  of  the  complainants'  solicitor,  stating  that 
he  did  not,  at  the  time  of  filing  the  original  bill,  know 
the  fact  that  said  Etherlin  T.  was  then  married  to  said 
James  King,  the  chancellor  granted  leave  to  the  com- 
plainants to  amend  the  original  bill,  by  making  it  the  bill 
aid  King  and  wife  alone:  and  the  bill  was  amended 
rdingly.  The  defendants  answered  the  amended  bill, 
and,  among  other  defenses,  pleaded  the  statute  of  limita- 
tions of  six  years.  On  final  hearing,  on  pleadings  and 
proof,  the  chancellor  held,  that  the  amendment  ought 
not  to  have  been  allowed,  as  it  made  an  entirely  new 
and  that  the  statute  of  limitations  w;is  a  complete  bar  to 
the  relief  sought  by  the  bill  as  amended.  He  therefore 
1  the  bill;  and  hi  |  us  error. 


126  SUPREME  COURT 


King  and  Wife  v.  Avery. 


::ni:k*  Rbavis,  for  appellants. — 1.  The  amendment 
properly  allowed.  -Session  Acts,  1857-8,  p.  230,  §  3; 
kweil  v.  Blackwell,  33  Ala.  57.  All  amendments, 
proporlv  allowed,  take  effect,  so  far  as  the  equity  of  the 
hill  is  concerned,  as  of  the  date  of  the  original  bill. — 
Blackwell  v.  Blackwell,  33  Ala.  57;  Cain  v.  Gimon, 
36  Ala.  168;  1  Dan.  Ch.  Pr.  455,  and  cases  cited.  It 
must,  then,  necessarily  follow,  that  if  the  statute  of  limi- 
tations had  not  effected  a  bar  when  the  original  bill  was 
filed  it  cannot  avail  as  a  defense  to  the  amended  bill ;  as  in 
analogous  cases  at  law,  where  the  statute  is  held'  not 
available  as  a  bar  to  an  amended  complaint,  if  the  action 
was  commenced  before  the  bar  was  perfected,  because 
the  amendment  relates  back  to  tne  commencement  of 
the  suit. — Agee  v.  Williams,  30  Ala.  636;  Bradford  v. 
Edwards,  32  Ala.  628. 

2.  If  James  King  had  died,  after  the  filing  of  the 
original  bill,  but  before  the  filing  of  the  amended  bill, 
Mrs.  Kin--  certainly  might  have  amended  her  bill,  by 
stating  her  marriage  and  the  death  of  her  husband,  with- 
out lottingin  thedefense  of  the  statuteof  limitations.  The 
cause  of  action  was  the  wife's;  her  husband  could  not  have 
maintained  a  suit  to  recover  it,  without  joining  her  as  a 
co-plaintiff  with  him;  and  if  he  had  died  before  recovering 
it,  it  would  have  survived  to  her.  In  such  case,  if  the 
statute  of  limitations  does  not  bar  the  wife,  it  can  neither 
lowed  against  the  husband  alone,  nor  against  both. 
Merrit  v.  Doss,  ol  Miss.  (2  George,)  275;  Wood  v.  Riker, 
1  Page,  616;  Black  v.  Whitall,  1  Stockton,  (N.J.)  572; 
Williams  v.  Lanier,  Lusbee's  (N.  0.)  Law  R.  30. 

E.  W.  Peck,  contra. — 1.  The  statute  of  limitations  had 
■led  a  bar  as  to  James  King,  before  the  passage  of 
the  act  of  1858,  under  which  the  amendment  was  at  first 
allowed;  and  the  amendment  cannot,  in  view  of  that 
tact,  be  said  to  "meet  the  justice  of  the  case."  More- 
over, the  amendment  ought  not  to  have  been  allowed, 
because  it  made  an  entirely  new  case,  founded  on  a  new 
title. — Rogers  v.  Atkinson,  14  Geo.  322.     The  amended 


OF  ALABAMA.  127 


King  and  Wife  v.  Avery. 


bill  must  be  regarded  as  the  suit  of  the  husband  alone, 
being  founded  on  his  title,  and  seeking  to  recover  the 
property  for  him;  and  the  decree  therein  rendered  would 
not,  in  any  fnture  litigation,  be  binding  on  the  wife. — 

9  Paige,  247,  and  cases  cited;  Story's  Eq.  PI.  §  61. 

2.  Where  new  matter  is  brought  forward  by  amend- 
ment, which  will  affect  the  opposite  party  prejudicially, 
the  amendment  will  not  have  relation  back  to  the  filing 
of  the  original  bill,  but  will  only  be  considered  as  pend- 
ing from  the  time  it  was  actually  filed. — Story's  Eq.  PI. 
§  904;  Mitford's  PI.  380;  McDougald  v.  Dougherty, 
11  Geo.  594;  Holmes  v.  Trout,  1  McLean,  1;  7  Peters, 
214;  Miller  v.  Mclntyre,  6  Peters,  64;  Woodward  v. 
Ware,  87  Maine,  563;  Dudley  v.  Pierce's  Administrator, 

10  B.  Monroe,  88. 

STOXE,  J.— [Jan.  29,  1861.]— The  3d  section  of  the 
act  "amendatory  of  the  proceedings  in  chancery," 
(Pamph.  Acts  of  1857-58,  p.  230,)  declares,  "that amend- 
ments  to  bills  and  answers  shall  be  allowed,  at  any  time 
before  final  decree,  to  meet  the  justice  of  the  Case;  and 
amendments  to  bills  shall  be  allowed,  by  adding  or  stri- 
king out  new  parties  complainant  or  defendant,  and  to 
meet  any  state  of  proof  that  shall  authorize  relief,"  &c. 
The  terms  of  this  statute  are  very  analogous  to  several  of 
the  most  important  provisions  of  the  Code,  in  relation 
to  amendments  in  suits  at  law.— Code,  §§2403-4.  We 
think  the  same  liberal  rules  of  intendment  should  he 
applied  to  lhe  two  statutes.  Under  this  statute,  we  hold, 
that  any  change  of  parties,  or  of  averment,  which  may 
become  necessary  to  meet  the  justice  of  the  case,  or  to  meet 
tote  of  (he  proof  that  mill  authorize  rdief  must  be  al- 
lowed, «* upon  such  terms  as  the  chancellor  shall  deem 
JU81  and  equitable."  If  the  state  of  the  proof  authorizes 
relief,  the  chancellor  has  no  discretion  in  the  matter  <f«l- 
g  the  amendment  In  the  terms  upon  which  the 
amendment  will  he  allowed,  he  has  a  discretion. 

In  the  present  case,  the  amendment  should  have  I 
allowed,  if  the  state  of  the  proof  authorize.!  relief.      The 


128  SUPREME  COURT 

King  and  Wife  v.  Avery. 


objection  to  its  allowance  is,  that  the  proposed  amend- 
ment made  a  new  case — that  when  the  amendment  was 
allowed,  the  statute  had  barred  the  right  therein  asserted; 
and  that,  as  to  this  new  matter,  or  new  case,  the  rule  is, 
that  the  statute  continues  to  run,  not  only  to  the  time  of 
filing  the  original  bill,  but  up  to  the  time  when  the 
amendment  was  allowed. 

[2.]  We  think  the  rule  must  be  regarded  as  settled  by  • 
the  authorities,  that  "if,  during  the  pendency  of  a  suit, 
any  new  matter  or  claim,  not  before  asserted,  is  set  up 
and  relied  upon  by  the  complainant,  the  defendant  has  a 
right  to  insist  upon  the  benefit  of  the  statute,  until  the 
time  that  the  new  claim  is  presented  ;  because,  until  that 
time,  there  was  no  lis  pendens,  as  to  that  matter,  between 
the  parties."  On  the  contrary,  if  the  amendment  set  up 
no  new  matter  or  claim,  but  simply  vary  the  allegations  as 
to  a  subject  already  in  issue,  then  the  statute  will  ruu 
only  to  the  filing  of  the  original  bill. — Dudley  v.  Price, 
10  13.  Mod.  84-88;  Story's"  Equity  PI.  §  90-4 ;  Holmes 
v.  Moreland,  1  McL.  I;  S.  C,  7  Pet.  171;  Miller  v. 
Mclntyre,  6  Pet.  61;  Woodwart  v.  Ware,  37  Maine,  563; 
Bradford  v.  Edwards,  32  Ala.  528. 

We  think  the  chancellor  obtained  a  correct  conclusion 
in  this  case.  Although,  in  the  suit  by  Mr.  and  Mrs. 
King,  the  right  to  recover  depended  on  the  title  of  Mrs. 
King  under  her  grandfather,  Mr.  Hill;  still  the  suit,  in 
its  present  form,  must  be  regarded  as  the  suit  of  Air. 
King,  the  husband.  The  authorities  so  treat  it,  and  go 
evm  so  far  as  to  hold,  that  a  failure  to  recover  in  such 
suit  would  be  no  bar  to  a  subsequent  suit  by  Mrs.  King. 
Further,  if  Mr.  King  had  died  pending  the  suit,  and 
Mrs  King  had  suffered  the  suit  to  abate,  taking  no  steps 
alter  his  death,  a  decree  for  costs  could  not  have  been 
rendered  against  her.— Sto.  Eq.  PI.  §§  61,  361;  Grant  v. 
Van  Schoonhaven,  9  Paige, 255;  Hughes  v.  Evans,  1  Sim. 
&  Stu.  185;  Reeves  v.  Dudley,  2  Sim.  &  Stu.  464;  Ow- 
de'D  v.  Campbell,  8  Sim.  551 ;  Wake  v.  Packer,  2  Keene, 
69;  England  v.  Downs,  1  Peav.  96. 

Although  in  a  suit  by  31  rs.  King  while  sole,  as  well  as 


OF  ALABAMA.  129 


Roberts  and  Wife  v.  Ogbourne. 


in  the  present  suit,  the  right  to  recover  depends  mainly 
on  her  title  ;  still  the  two  calks  are  entirely  different,  in 
this  :  In  a  suit  by  her  alone,  the  litigation  would  be  en- 
tirely her's,  and  the  money  her's,  if  she  succeeded ;  in 
the  present  suit,  the  right  to  recover  depends  also  on  a 
new  derivative  title,  viz.,  the  marital  rights  of  Mr.  King, 
acquired  by  his  marriage  with  the  female  complainant. 
If,  on  a  proper  issue,  there  was  a  failure  to  prove  the  mar- 
riage, this  suit  must  fail,  although  Mrs.  King's  title  may 
be  perfect.  If  this  bill  succeed,  the  fruits  of  the  recov- 
ery will  vest  in  Mr.  King.  The  suit  byvMrs.  Croxton  was 
in  her  own  right.  The  present  is  Mr.  King's  suit,  in 
which  Mrs.  King  incurs  no  costs  or  disabilities,  and  in 
which,  if  there  be  no  change  of  parties,  she  can. realize 
no  benefit. — Dudley  v.  Trice,  supra;  Thrasher  v.  In- 
gram, 32  Ala.  645. 

The  decree  of  the  chancellor  is  affirmed. 


ROBERTS  and  WIFE  vs.  OGBOURNE. 

[lULL    IX    EQUITY    FOR    RECOVERY    OF    SLAVES,  ACCOUNT,    &C.] 

1.  Brgnest  to  " heirs  of  the  body  "  construed  to  vest  in  children  as  pur- 
chasers.— Where  the  testator  devised  and  bequeathed  Ins  entire 
to,  both  real  and  personal,  to  his  wife  during  life  or  widow- 
hood, and  directed  that,  on  her  death  or  marriage,  his  real  estate 
should  be  sold,  and  all  his  property  be  divided  into  seven  equal 
parts,  "  an il  thru  disposed  of  as  follcics — to  the  heirs  of  the  body  of 
.  [his  daughter]  one  part,  she,  the  said  Sarah,  to  have  the  use 
ami  treqf  during  her  l(fe,  Out  not  to  sell  or  dispose  thereof,'" 

and  it  appeared  that  Sarah  B.  was  married,  ami  bad  children 
living  at  tlio  time  the  will   was  made,  and  that  the   testator,  in 
another  clause  of  his  will,  bequeathed  a  specific  sum  in  mom 
her  directly,  in  tin-  event  that  lie  did  not  make  an  advancement 
of  equal  amount  l<>  her  during  his  life, — /.</</,  that  the  children  of 
lb   I!.,  who  were   living  at  the  death  of  the   testator's  widow, 
-   under   the  bequest,  and  that  the  rule  in   Shel- 
case  did  not  apply.    (Stonf,  J.,  dissenting.) 


130  SUPREME  COURT 

Roberts  and  Wife  v.  Ogbourne. 

Appeal  from  the  Chancery  Court  at  Montgomery. 
Heard  before  the  Hon.  Wade  Keyes. 

The  material  facts  of  this  case,  as  alleged  in   the  bill, 
may  be  thus  stated:  John  Breedlove  died  in  Montgom- 
ery county,  in  1833,  having  first  made  and  published  his 
last  will  and  testament,  which  was  duly  admitted  to  pro- 
bate after  his  death,  and  which  contained,  the  following 
provisions:    The  first  clause  directed  the  payment  of  all 
his  debts.     The  second  clause  was  a  devise  and  bequest 
to  his  wife,  Mrs.  Nancy  Breedlove,  of  his   entire  estate, 
both  real  and  pergonal,   during   her  widowhood.     The 
third,  fourth  and  fifth  clauses  contained  bequests  of  ten  dol- 
lars each  to  three  of  his  children,  to  whom  he  had  already 
made  advancements.      The  sixth   clause,  alter  reciting 
partial  advancements,  of  different  amounts,  already  made 
to  Sarah   Bledsoe,  Frances  Bledsoe,  Elizabeth  Bledsoe, 
Martha  Eubanks,  and  Lewis  P.  Breedlove,  (his  children.) 
and  his  inteution  to  make  further  advancements  to  them, 
added,  "But,  if  I  should  not  make  such  advancements 
during  my  life,  then  it  is  my  will   and  desire,  that  my 
wife  should  do  so  after  my  death,  in  the  order  in  which 
they  are  named,  out  of  the  proceeds  of  the  crop,  orprofits 
of  the  estate,  (after  maintaining  the  family,  and  paying 
all  expenses,)  at  such  times,  and  in  such  manner,  as  she 
may  judge  most  fit  and   expedient;  but,  if  neither   my- 
self nor  my  wife  should  make  such  advancements,  then, 
after  the  death  of  my  wife,  I  give  and  devise  the  balance 
of  such  sums  not  then  already  advanced  be  paid  out  of 
my   estate."     The  seventh  clause   directed  all  his   real 
estate  to  be  sold  to  the  best  advantage,  at  the  death  or 
second  marriage  of  his  widow.     The  eighth  clause  was 
in  these  words:  "At  the  death   or  intermarriage  Of  my 
wife,  I  direct,  will   and  devise,  that  all   my  estate,  both 
real  and  personal,  after  paying  the  foregoing  bequests,  be 
divided,  if  she  die,  into  seven  equal  parts, — if  she  marry, 
into  eight  equal  parts,  she  taking  one  part, — and  then  dis- 
posed of  as  follows :  to  the  heirs  of  the  body  of  Sarah  Bled- 
soe, one  part,  she,  the  said  Sarah,  to  have  the  use  and  benefit 


OF  ALABAMA.  131 


Roberts  and  Wife  v.  Ogbourne. 


thereof  during  her  life,  but  not  to  sell  or  dispose  thereof ;  to 
Lewis  P.  Bledsoe,  one  part ;  to  the  heirs  of  the  body  of 
Frances  Bledsoe,  one  part,  she,  the  said  Frances,  to  have 
the  use  aud  benefit  thereol  during  her  life,  but  not  to 
sell  or  dispose  thereof;  to  the  heirs  of  the  body  of  Eliza- 
beth Bledsoe,  one  part  also,  the  said  Elizabeth  to  have 
the  use  andbenefit  thereof  during  her  life,  but  not  to  sell 
or  dispose  thereof;  to  the  heirs  of  the  body  of  Martha 
Enbanks,  one  part,  she,  the  said  Martha,  to  have  the  use 
and  benefit  thereof  daring  her  life,  but  not  to  sell  or  dis- 
pose thereof;  to  Joseph  M.  Breedlove,  one  part;  and  to 
Benjamin  F.  Breedlove,  one  part." 

Mrs.  Sarah  Bledsoe  was  a  daughter  of  the  testator,  and 
was,  at  the  time  the  will  was  executed,  the  wife  of  Wil- 
liam Bledsoe,  and  then  had  one  or  more  children  living. 
Mrs.  Nancy  Breedlove,  the  widow,  and  William  Bledsoe, 
qualified  as  executors  of  the  testator's  will.  Mrs.  Breed- 
love died  in  the  year  183G,  having  never  married  a  second 
time;  and  William  Bledsoe  thenceforward  acted  as  sole 
executor,  and  obtained  from  the  orphans'  court  orders  for 
the  distribution  of  the  estate,  under  which  all  the  prop- 
erty was  distributed,  except  one  share  which  he  retained, 
iu  right  of  his  wife.  Mrs.  Sarah  Bledsoe  died  in  April, 
1838,  leaving  several  children  surviving,  the  eldest  of 
whom,  Sarah  II.,  married  Young  A.  Roberts  in  October, 
1847,  being  then  seventeen  or  eighteen,  years  of  age. 
Anne,  another  daughter  of  Mrs.  Bledsoe,  married  A.  B. 
Viekers;  and  she  and  Mrs.  Roberts  were  the  only  chil- 
dren who  were  living  when  the  bill  in  this  case  was  tiled. 
William  Bledsoe  died  in  October,  1855,  and  Robert  II. 
Foxhall  duly  qualified  as  his  executor. 

In  August,  1856,  Roberts  and  wife  filed-  their  bill  in 
chancery,  against  said  Foxhall,  as  executor,  and  Viekers 
and  wife;  claiming  one-half  of  the  property  which  Wil- 
liam Bledsoe  had  retained,  and  praying  an  account  and 
general  relief,  Foxhall  having  died  pending  the  suit, 
the  cause  was  revived  against  Wm.  IT.  Ogboume,  as  the 
succeeding  personal  representative  of  William  Bledsoe. 


13o  SUPREME  COURT 

Roberts  and  Wife  v.  Ogbourne. 


The  chancellor  sustained  a  demurrer  to  the  bill,  for  want 
of  equity  ;  and  his  decree  is  here  assigned  as  error. 

Chilton  &  Gunter,  and  E.  M.  Kerr,  for  the  appel- 
lauts. — The  bequest  is  in  direct  terms  to  "the  heirs  of 
the  boily  of  Sarah  Bledsoe,"  who  had  children  living  at 
the  time  of  the  execution  ot  the  will.  Her  children  an- 
swer the  description  in  the  bequest,  and  take  as  pur- 
chasers under  it.  The  same  clause  of  the  will  shows, 
that  no  such  expression  is  used  when  a  bequest  is  made 
to  the  testator's  sons,  and  that  it  is  several  times  used 
when  he  is  providing  for  his  daughters  ;  and  another 
clause  shows,  that  the  daughters  themselves  had  already 
received  advancements,  and  were  to  receive  more.  The 
intention  being  clear  that  the  children  should  take  as 
purchasers,  that  intention  must  prevail. — Shepherd  v. 
Nabors,  6  Ala.  631  ;  Dunn  v.  Davis,  12  Ala.  135  ;  Ellis 
v.  Ellis,  15  Ala.  296  ;  Hodgson  v.  Ambrose,  Doug.  327  ; 
9  Ala.  716. 

The  rule  in  Shelley's  case  has  no  application,  because 
the  estates  of  the  ancestor  and  heirs  are  not  of  the  same 
quality  ;  Mrs.  Bledsoe's  interest  being  a  mere  equitable 
use  for  life,  while  her  children  take  the  legal  estate. — 
2JarmanoriWills,244;  2  Story's  Equity,  §845  a;  8Paige, 
152 ;  2  Paige,  122.  In  cases  of  bequests  of  personal 
property,  the  rule  in  Shelley's  case  is  only  applied  to 
effectuate  the  intention,  and  not  on  grounds  of  public 
policy,  as  in  devises  of  realty.  If  the  subject  of  the  be- 
quest were  realty,  the  words  used  would  not  be  sufficient 
to  create  a  freehold  estate  in  Sarah  Bledsoe.  The  whole 
property  is  given  to  "the  heirs  of  the  body,"  and  the 
time  of  enjoyment  by  them  postponed;  not  the  whole 
given  to  the  ancestor  for  life,  with  remainder  to  "the 
heirs  of  her  body."  Moreover,  the  whole  bequest  is  an 
executory  trust,  to  which  the  rule  in  Shelley's  case  never 
has  been  applied. — 1  White  &  Tudor's  Leading  Cases  in 
Equity,  17;  2  Jarman  on  Wills,  253;  2  Kelly,  307; 
3  ib.  559. 


OF  ALABAMA.  133 


Roberts  and  Wife  v.  Ogbourne. 


Watts,  Judge  &  Jackson,  contra.—  "  Heirs  of  the  body," 
in  their  technical  sense,  are  words  of  limitation,  and  not 
words  of  purchase;  and  there  is  nothing  in  the  will  to 
explain  or  limit  their  meaning,  or  to  show  that  they  were 
used  in  any  other  than  their  technical  sense.  The  clause 
can  have  no  other  legal  meaning,  than  if  it  was  in  these 
words:  'kTo  Sarah  Bledsoe  one  part  during  her  life,  and 
at  her  death  to  the  heirs  of  her  body ;  she,  the  said  Sarah, 
to  have  no  right  to  sell  or  dispose  of  the  same."  If  this 
were  the  language,  the  children  of  Sarah  Bledsoe  could 
not,  under  our  decisions,  take  as  purchasers  f»om  the 
testator. — Ewing  v.  Standefer,  18  Ala.  400;  Hamnor  v. 
Smith,  22  Ala.  433;  Machen  v.  Machen,  15  Ala.  373  ; 
Snodirrass  v.  Landman,  20  Ala.  593,  and  authorities  cited 
in  these  several  cases  ;  also,  Keyes  on  Chattels,  §§  246-50. 
The  clause  prohibiting  Sarah  Bledsoe  from  selling  or 
disposing  of  her  share,  is  void. — Keyes  on  Chattels, 
§§  131-133.  William  Bledsoe  having  reduced  the  prop- 
erty to,  possession  during  coverture,  his  marital  rights 
attached,  and  it  became  his  absolute  property. 

R.W.  WALKER,  J.— [March  9,  1861.]— In  its  techni- 
cal sense,  the  term  "heirs  of  the  body  "  includes  all  per- 
sons who  successively  answer  t lie  description  of  heir  of 
the  body;  and  hence  it  embraces  the  whole  line  of  lineal 
descendants,  to  the  most  remote  generation.  Techni- 
cally construed,  the  expression  is  one  tthich  cannot  be 
used  *o  describe  the  children  or  grandchildren  of  a  living  • 
person,  for  "wemo  est  hczrea  viveniis."  That  the '  term,  as 
used  in  this  will,  cannot  be  understood  in  this  technical 
sense,  is  plain  ;  because  the  testator  directs  the  estate  to 
vest,  during  the  life-time  of  Sarah  Bledsoe,  in  the  "heirs 
of  the  body"  of  Sarah  Bledsoe.  That  this  was  the  inten- 
tion of  the  testator,  seems  too  clear  for  doubt.  On  the 
death  of  the  widow,  the  property  is  to  be  divided  into 
seven  equal  parts,  'Vand  then  disposed  of  as  follows."  To 
what  time  d<>r-  (hen  here  refer?  Obviously  to  the  period 
of  division,  the  death  of  Mrs.  Breedlovc.  Next  we  have 
the  manner  in  which  these  seven  parts  are  to  be  tltanWs- 


i  sri'RKME  COURT 

Roberts  and  Wife  v.  Ogbourne. 

1  of— "to  the  heirs  of  the  body  of  Sarah  Bledsoe, 
part."  If  the  testator  had  stopped  there,  there  would 
be  do  room  to  doubt  that  the  will  would  have  operated  a 
plete  gilt  of  that  one  part,  to  take  eftect  at  that  time, 
in  favor  of  the  persons  answering  the  description  of  heirs 
of  the  body  of  Sarah  Bledsoe.  The  words  which  follow 
simply  postpone  the  enjoyment  of  the  property  by  the 
legatees  during  the  life-time  of  Mrs.  Bledsoe,  by  reserv- 
ing to  her  the  use  and  benefit  of  the  same  during  that 
time.  The  qualification  attached  to  Mrs.  Bledsoe's  use 
of  the  property,  "not  to  sell  or  dispose  thereof,"  (whether 
valid  or  not,)  is  at  least  indicative  of  the  intention  of  the 
testator  to  give  only  a  use,  and  not  a  property  or  estate  in 
the  corpus  of  the  legacy.  The  heirs  do  not  take  on  the 
death  of  Sarah  Bledsoe,  but  they  then  come  into  the  en- 
joyment of  that  which  they  took  on  the  division  made 
during  her  life-time,  The  term  "heirs  of  the  body"  is, 
therefore,  used  to  describe  persons  who  take  an  interest 
before  the  death  of  Mrs.  Bledsoe  ;  and  hence  the  persons 
answering  that  description  take,  not  as  her  heirs,  but  di- 
>  from  the  testator,  as  purchasers  under  the  will. 

Mr.  Fearne  says,  that  when  the  words  ''heirs,"  &c, 
"op crate  only  to  give  the  estate  imported  by  them  to  the 
heirs  described  originally,  ami  as  the  persons  in  whom 
that  estate  is  considered  as  commencing,  and  not  deriva- 
tively from  or  through  the  ancestor,  they  are  properly 
words  of  purchase."—  Fearne  Rem.  79,  194. 

The  attempl  to  bring  this  case  within  the  rule  in  Shel- 
ley's case— erroneously  so  called,  .when  applied  to  person- 
alty— rami.. •  ed,  without  transposing  and  omitting 
words  found  In  the  will,  and  adding  others  not  used  by 
the  testator.  The  proposition  is,  that  the  clause  as  it 
!-~  is  l1"'  same  in  effe<  t  as  if  it  read  thus- "To  Sarah 
during  her  Kfe-time  one  part,  but  not  to  sell  or 
dispose  thereof,  and  after  her  death  to  the  heirs  of  her 
body."  This  is  uol  what  the  testatoriias  said.  He  gives 
the  one  part  to  the  heirs  of  the  body  of  Sarah  Bledsoe, 
rving  to  her  simply  a  us<  during  her  life-time;  and 
this  use  he  studious,  to  distinguish  from   a  prop- 


OF  ALABAMA.  135 


Roberts  and  Wife  v.  Ogbourne. 


erty  in  the  corpus,  by  denying  to  her  the  right  to  sell  or 
dispose  of  it.      The  words  found  in  the  will  give  to  the 
"heirs  of  the  body,"  &c,  the  entire  property  in  the  cor- 
pus of  the  legacy ;  simply  postponing  the  time  of  its  en- 
joyment, in  order  that  Mrs.  Bledsoe  may  have  the  tem- 
porary use.     The   words  as  transposed,  and  added  to, 
give  to  Mrs.  Bledsoe  the  property  in   the  corpus   during 
her  life,  with  remainder  to  the  heirs  of  her  body.     In  the 
clause  as  it  stands,  the  idea  of  a  remainder  is  studiously 
excluded,  while  in  that  proposed  as  a  substitute,  it  is  the 
controlling  and  fundamental  idea.      In  the  will  as  it  was 
written  by  the  testator,  while  the  use  of  the  property  is 
secured  to  Mrs.   Bledsoe,  this  use  is  clearly  separated 
from  the  title  to  the  corpus  of  the  property,  which  vests 
at  the  time  of  the  division  in  the  persons  designated  as 
the  heirs  of  the  body  of   Sarah  Bledsoe.     These  heirs 
take  (the  entire  property,  not  a  remainder  after  a  life-es- 
tate ;  and  the  reservation  in  favefr  of  Mrs.  Bledsoe  is  not 
of  the  thing  itself,  but  of  the  use  and  benefit  for  a  speci- 
fied time.     In  this  respect,  the  case  is  distinguishable 
from  all   ttiosc  which  have  been  held  to  fall  within  the 
rule  in   Shelley's  case. — See  Shepherd  v.  Nabors,  6  Ala. 
<-l;    Reyes'  Chattels,  §  350  (a),  §202;    2   Story's  Eq. 
S  B45{a);   Wilks  v.  Greer,  14  Ala.  437-442;   Golding  v. 
Golding,  24  Ala.  125. 

It  is  to  be  borne  in  mind,  that  by  the  seventh  clause  of 
his  will,  the  testator  directs  that,  on  the  death  or  inter- 
marriage of  his  widow,  all  his  real  estate  shall  be  sold  to 
the  best  advantage;  and  the  language  of  the  succeeding 
clan-"  must  be  construed  with  reference  to  this  provision. 
Although  there  i<  no  express  allegation  to  that  effect, 
be  presumed  that  the  ezecotor  sold  the  land 
as  directed,  oh  tbe  death  of  Mrs.  Breedlove;  and  the  ex- 
hibit attached  t<>  the  bill  seems  to  confirm  this  presump- 
tion. At  all  events,  the  words  of  the  will  must  1"'  <"n- 
strued  as  if  his  directions  had  been  obeyed.  La  ml  ord  I 
to  be  sold  is  regarded  a  For  every  purpose  i 

ean  ■  intent  of  the  t<  Btator. 

Clark  t.  Clark,     3]  I    was  held,  that  the 


130  SUPREME  COURT 


Roberts  and  Wife  v.  Ogbourne. 


bequest  of  the  use  of  the  residue  of  the  testator's  per- 
sonal estate  (which  was  directed  to  be  sold),  for  the  life 
of  the  legatee,  or  for  auy  shorter  period,  does  not  entitle 
such  legatee  to  the  possession  of  the  fund.  The  executor 
should  retain  the  fund  in  his  own  hands,  and  pay  over 
the  income  thereof  to  the  legatee  as  it  accrues  ;  and  if 
the  executor  suffers  the  capital  to  go  into  the  hands  of 
such  legatee,  to  enable  him  to  collect  the  income  himself, 
he  must  take  sufficient  security  from  the  legatee  to  insure 
the  return  of  such  capital. — See,  also,  Lovenhoven  v.  Shu- 
ler,  2  Paige,  122. 

This  court  has  held,  that  the  proper  practice  in  the 
chancery  court,  in  such  cases,  is  to  give  the  legatee  for 
life  the  option  of  taking  the  mouey  upon  his  executing  a 
suitable  bond,  and,  in  case  of  his  failure  to  do  so,  then  to 
order  the  money  to  be  let  out  on  loan,  and  the  interest 
collected  anuuall}T,  and  paid  over  to  him.— Mason  v. 
Pate,  34  Ala.  392. 

But,  if  we  were  to  concede  that  Mrs.  Bledsoe  took  a 
technical  Y\f estate,  not  a  mere  usufructuary  interest; 
still  the  rule  would  not  apply,  if  the  remainder  is  to  vest 
daring  her  life,  in  certain  persons  described  as  the  "heirs 
of  her  body;"  for  that  fact  would  negative  the  idea,  that 
these  words  were  to  be  construed  in  their  technical  sense. 
Wherever  these  words  are  used  as  " descriptio  personarwnv" 
and  not  as  comprehending  the  whole  line  of  descendants 
in  infinitum,  they  are  words  of  purchase,  not  of  limitation, 
and  the  rule  in  Shelley's  case  has  no  application. 

Mr.  Fearne  says,  that  the  inquiry,  in  reference  to  the 
application  of  the  rule  in  Shelley's  case,  is  reducible  to 
two  siinploquestions,  viz.:  "Is  the  limitation  to  the  heirs, 
&c,  so  calculated  and  directed,  that  the  person  claiming 
under  it  must  entitle  himself  merely  under  the  descrip- 
tion of  heir  of  the  species  denoted  by  the  words  in  their 
technical  sense?  And  if  so,  is  there  anything  to  restrain 
the  same  words  from  equally  extending  to  and  compre- 
hending all  other  persons  successively  answering  the 
same  description,  or  from  entitling  them  alike  under  it, 
and  co  nomine?     A  negative  answer  to  either  branch  of 


OF  ALABAMA.  137 


Roberts  and  Wife  v.  Ogbourne. 


this  inquiry  seems  to  exclude  the  application  of  the  rule." 
Fearne  Rem.  199. 

We  have  already  expressed  the  opinion, that  the  words 
"heirs  of  the  body"  were  here  used  as  descriptive  of  par- 
ticular persons,  who  were  to  take  an  interest  under  the 
will  during  the  life  of  their  ancestor,  and  not  as  embra- 
cing all  other  persons  who  might  successively  answer  the 
description  of  "heir  of  the  body  of  Sarah  Bledsoe,"  un- 
derstanding that  expression  in  its  technical  sense.  This 
being  so,  both  branches  of  the  inquiry  proposed  by  Mr. 
Fearne  must  be  answered  in  the  negative. 

The  view  we  have  taken  derives  support  from  the  fact, 
that  Sarah  Bledsoe  had  children  living  at  the  date  of  the 
will,  who  might  take  under  it,  if  we  understand  the 
words  in  their  popular,  not  in  their  technical  sense  ;  that 
Mrs.  Bledsoe  had  received  advancements  from  her  father 
during  his  life-time,  and  that  he  made  a  further  separate 
provision  for  her  by  his  will ;'  that  she  was  at  the  time  a 
married  woman,  and  that  her  father  must  be  presumed  to 
have  known  that  a  gift  to  his  daughter  would  enure  to  the 
benefit  of  the  husband,  to  the  exclusion  of  her  children. 

Our  conclusion  is,  that  the  terms  "heirs  of  the  body 
of  Sarah  Bledsoe,"  were  intended  as  descriptive  of  the 
children  of  Sarah  Bledsoe  who  might  be  living  at  the 
time  appointed  for  the  division  of  the  property,  namely, 
the  death  of  the  testator's  widow;  that  the  persons  thus 
described  take  from  the  testator  directly,  as  purchasers, 
and  not  through  Mrs.  Bledsoe  in  succession,  as  her  heirs. 
Hence  the  rule  in  Shelley's  case  has  nothing  to  do  with 
the  case.— See  Woodley  v.  Findlay,  !)  Ala.  720;  Dunn  v. 
Davis;  12  Ala.  135;  Powell  v.  Glenn,  21  Ala.  4G6;  Dur- 
den  v.  Burns,  b'  Ala.  368;  Dudley  v.  Porter,  10  Ga.  G1S; 
Hodgson  v.  Bassey,  2  Atk.  89;  Keyes'  Chatt.  §102. 

Decree  reversed,  and  cause  remanded. 

STONE,  J. — I  am  not  able  to  agree  with  cither  the 
reasoning  or  conclusions  of  the  majority  of  the  court,  as 
expressed  in  their  opinion.      I   have  found  no  case,  and  t 


apprehend  none  can  be  found,  which  agrees  with  this  ii 
10 


138 SUPREME  COURT 

Roberta  and  Wife  v.  Ogbourne. 

its  facts,  aqd  which  asserts  that  heirs  of  the  body  take  as 
purchasers.  In  Baldwin  v.  Carver,  (1  Cowp.  313,)  Lord 
Mansfield  said,  "The  rule  of  law  most  undoubtedly  is, 
that  a  devise  to  the  heirs  general  or  special  of  a  man 
alive,  is  void."  In  the  same  case,  which  in  its  principles 
is  not  distinguishable  from  this, -save  in  the  feature  that 
there  was  in  that  ease  an  attempted  bequest  over  of  the 
personalty  if  the  life-teuant  died  without  heirs  or  issue, 
that  same  learned  judge  remarked,  "It  strikes  me,  as  at 
present  advised,  that  the  subsequent  limitation  of  the 
personalty  is  too  remote." 

There  is  a  rule,  well  defined  and  sensible,  that  "where 
a  bequest  is  to  children  or  grandchildren  generally,  pay. 
iible  at 'a  certain  time,  or  at  the  happening  of  an  event, 
then  all  who  lill  the  description  and  are  in  esse  at  the 
lim<\  or  at  the  happening  of  the  event,  take."  The  spirit 
ai.d  »f  this  rule,  L  apprehend,  lie  in  the  following 

two  principles:  1st,  there  is  a  policy  of  the  law  to  so 
construe  the  language  of  the  testator,  as  to  let  in  the 
hie  number  of  beneficiaries;  and,  2d,  when, 
by  the  terms  of  tie-  bequest,  the  property  becomes  ne- 
arily  divisible — namely,  by  the  occurrence  of  the 
time,  or  the  happening  of  the  <>■<!*/  specified,  then  the  door 
must  be  clos  ir-beueficiaries,   or  the  result 

would  be  to  make  the  distributive  portions  unequal; 
which  would  defeat  the  express  intention  of  the  testator. 
8  rules,  thus  expounded,  lend  no  support  to  the 
opinion  of  t lie  majority,  because  the  will  contains  no 
provision  for  the  division  <!'  the  property  among  the 
hejrs  of  Sarah  Bl  On  the  contrary,  such  property 

could  ];•  ily  !"■  divided  among  the  heirs,  during 

the  life-time  of  Sarah  Bleds< 

A  further  argument :  The  rule  invoked  has  no  pertinence 
in  determining  whether  the  words  "heirs  of  the  body" 
designate  a  class  of  persons  who  take  as  purchasers,  or 
are  words  of  limitation,  defining  the  quantum  of  estate 
in  the  first  taker.  It  only  obtains  between  persons,  whose 
right  to  take  as  purchasers  is  shown  by  the  terms  of  the 
instrument.     The  present  will  contains  none  of  the  words 


OF  ALABAMA.  139 


Roberts  and  Wife  v.  Ogbourne. 


which  impart  to  the  phrase  heirs  of  the  body  the  more 
definite  import  of  children. 

The  will  of  Mr.  Breedlove  gives  a  vested  legacy  to  the 
"  heirs  of  the  body  of  Sarah  Bledsoe,"  or  it  gives  them 
nothing.  It  was  postponed  in  enjoyment  until  the  death, 
first  of  testator's  widow,  Mrs.  Breedlove,  and  afterwards 
until  the  death  of  Sarah  Bledsoe.  The  division  of  the 
estate,  directed  to  take  place  at  the  death  of  Mrs.  Breed- 
love, was  not  lor  the  purpose  of  ascertaining  the  partic- 
ular share  that  should  go  to  each  heir  of  Sarah  Bledsoe's 
body,  but  to  define  the  sum  out  of  which  the  heirs  could 
claim  partition  at  the  death  of  their  mother,  Sarah  Bled- 
soe. This,  then,  created  no  necessity  for  closing  the 
door  against  after-boru  children.  In  my  opinion,  the 
legal  questions  in  this  case  stand  precisely  as  they  would 
stand,  if  the  testator  had  himself  perfected  the  division 
of  his  estate,  to  take  effect  at  the  death  of  testator's 
widow,  and  had  bequeathed  certain  named  property  then 
to  go  "to  the  heirs  of  Sarah  Bledsoe, — she,  the  said  Sarah, 
to  have  the  use  and  benefit  thereof  during  her  life,  but 
not  to  sell  or  dispose  thereof."  Thus  construed,  no  one 
would  contend,  that  the  particular  class  of  heirs  of  Mrs. 
Bledsoe's  body,  who  should.be  in  life  at  the  death  of 
Mrs.  Breedlove,  would  take  as  purchasers,  to  the  exclu 
i  of  after-born  children. 

An  argument  may  be  supposed  to  be  predicable  on  the 
collocation  of  the  language  of  the  bequest.  The  clause 
first  gives  the  property  to  the  heirs  of  Sarah  Bledsoe,  and 
then  reserves  a  life-estate  to  Mrs. Bledsoe.  lam  notable 
to  pere<ive  any  force  in  this  argument.  The  law  regards 
substance,  rather  than  the  form  of  things.  The  sub- 
stance of  this  bequest  is,  that  Mrs.  Bledsoe  was  to  have 
ind  benefit  oi  this  property  during  her  lite,  bul 
Dot  to  Bell  or  dispose  thereof;  and  at  her  death,  the  | 
crt\  the  heirs  of  her  body.-r  ■  dey. 

Thus  understood,   no  one  would 
tend,  that//'  ..ould  he   purchasers. — See  Britton  v. 

Mer.  116;  Bradley  v.  lYixo*  .Jr.  524; 

Bimmonda  v.   Simmond  ti    v.    1". 


140  SUPREME  COURT 

Jemison  v.  Smith. 


s.  73;  Moore  v.  Brooks,  12  Grat.  135  ;  Kay  v.  Con- 
ner, 8  Humph.  63-3  \  Hooe  v.  IIooc,  18  Grat.  245  ;  Ewing 
v.  Stan  defer,  18  Ala.  400;  Maehcn  v.  Machen,  15  Ala.  373; 
IRoperon  Legacies,  46  el  seq. ;  Elmore  v.  Mustin,  28  Ala. 


309:  11  Geo.  G7. 


Holding  that  the  term  heirs  of  the.  body,  as  found  in  this 
will,  is  no  more  definite  than  it  would  be  if  it  followed 
the  creation  of  the  life-estate  in  Mrs.  Bledsoe,  I  cannot 
regard  the  present  complainant  as  a  purchaser. 


JEMISON  vs.  SMITH. 

[deti.ntk   FOR   SLAVES.] 

1.. Probata  \e&aity  for.— A  foreign  will  mustbe  proved 

to  have  been  admitted  to  probate,  before  a  certified  copy  of  it  can 
1  ed  as  evidence  of  title  to  personal  property,  or  h.  come 

adna  rid<  nee  under  the  acl  of  congress  of  1790. 

2.  Ju  '  . — The  courts  of  this  State  will  take  judi- 

cial notice  of  the  fact$,  that  the  proceedings  of  courts  of  ordinary 
in  a  sister  State,  under  the  constitutional  and  statutory  prov  sions 
in  evifl<  nee  in  this  case,  are  lamentably  loose,  and  that  their  re- 
cord&.are  made  up  with  peculiai  carelessness;  and  will  therefore, 
in  construing  the  records  of  those  courts,  adopt  such  a  construc- 
of  the  language  as  will  be  most  favorable  to  the  maintenance 
and  regularity  of  their  proceedings,  without  supplying  what 
polutel)  wanting 

'■'>.  J'i  A  transcript  from 

th<  I  of  ordinary,  in  Georgia,  properly  certified 

nnd  0;  containing  a  copy  of  a  will,  an 

affidavit  beneath  of  the  Bubsciibing  witnesses,  purport: 

ing  t"  have,  b  sen   made  before  ".I.  Thigpen,  J.  1'.,"  to  the  effect 
'•  that  be    ■  i  '  bis  name  al  the  last  part  of  the  with- 

in instrui  mting;"  followed  by  an  entry,  stating  that  B. 

8.  and  .!.  Si  v  orn  executors ;'"  and  other  entries,  showing 

thai  o  appointed  discharged  several  executorial  du« 

d  by  the  court  as  executors, — must,  under 
the  constitution  and  laws  of  that  State,  ae  proved  in  this   case,  be 


OF  ALABAMA.  Ul 

Jemison  v.  Smith.        \ 


regarded  as  showing  the  probate  of  the  will,  and  the  appointment 
and  qualification  of  the  executors. 

4.  Presumption  of  probate  from  lapte  of  time; — Author:  ;  on  'heV 
question,  whether   the  probate \if  a  will,  nearly  sixty   years  old,   >■ 
would  be  presumed  from  lapse  <  I  time,  under  the   circumstances 
of  this  ease. 

5.  Redundant  evidence. — Where  tluVprobate  of  a  will  is  shown  by  a 
transcript  from  the  records,  of  the  proper  court,  duly  certified, 
other   parts  o(  the  transcript,   containing  entries  relating  to  the 

tator''s  estate,  which  can  have  no  other  cil'eet  than  to  strengthen 
the  conclusion  that  the  will  was  admitted,  to  probate,  are  merely 
redundant  evidence;  ami  their  admission  as  evidence  is,  almost, 
error  without  injury. 
G.  Admissions  against  interest. — The  declarations  of  a  person  wi- 
the possession  of  slaves,  to  the  effect  "that  they  had  been  lo 
to  him  by  the  widow  of  S.,   and   were  held    under   the  will   of  S., 
•to  be    returned  at  her  death,  to  be  divided  as  directed  l>v  sail! 
will,"  are  competent  evidence  against  a  sub-Burchasex1  from  lam  by 
subsequent  contract ;  so  also  are  his  declarations,  "  that  there  was 
a  dispute  about  the  title,  and  be  would  only  sell  such  title  as  he 
got  from  the  sheriff,  as  he  was  informed  that  the  heirs  oT S.  would 
claim  them  at  the  death  of  his  widow." 

lendment  of  complaint. — A   complaint  may  bo  amended,  (G  de, 
[OS,)  by  striking  out  the  name  of  one  of  the  .  who  was 

dead  at  the  commencement  of  the  suit. 

8.  Motion  to  suppress  depositions  taken  before,  amendment  olaint. 

The  fact  that   the  complaint  is   amended,  alter  depositions 
been  taken,  by  striking  out  the  name  of  one  of  the  plaintiffs. who 
was   de.id   at    the   commencement  of  the  suit,  is  not   a 
uid  for  the  suppression  of  such  depositions. 

of  estate  fur  life,  with  /<  t  r ;'  uncertainly;    remote- 

ness.— "  I  will  and  bequeath  to  my  beloved  wife  Elizabeth  one  ne- 
gro woman,  named  Jane,  to  her  her  life-time;  then  slit,  arid  all 
h<  r  increase  from  the  date  '97,  to  be  equally  divided  among  bhe 
five  children,  if  living  at  that  time;  if  not,  to  their  loirs  lawfully 
□  Of  their  body  ;  if  none  such  heirs,  to  be  ennally  divided 
ammi-  themselves  when  the  youngest  child  comi  and 

after  my  wife's  life-time,  the  wench to  be  hired  to  support  her 
■children;  if  her  labor  will  not  support  her  children,  th«\ 
all  help  her,  08,  they  are  to  reap  the  property  :  and  my  d<  sire  is, 
that  the  children  should  be  kept  together,  and  schooled  i  pon  the 
biro  of  the  negroes,  until  tiny  come  of  age  to  demand  them— the 
at  twenty-one, the  girls  at  sixteen  yea  and  till  then. 

tin'  hiic  t"  go  to  the    Support  of  :dl    the  ehildi.  n.   I  oth    black    and 
white.     My  desire  is,  that  if  any  of  the  children  should  die  I 

they  all  should  have  his  .nally  di\        1 


142  \ SUPREME  COURT 

Jemison  v.  Smith. 

among  them;  and  if  any  one  of  the  negroes  dies,  they  all  shall 
•    make  him  equal- with  themselves."     Held,   that  this  bequest  was 

not  void   for  uncertainty,  but  created  a  life-estate  in   the  widow, 

with  remainder  over  to  such  of  the  testator's   five  children  as 

.   might  then  bo  living,  and  the  lin.  dants,  then  in  exist* 

■,  of  those  who  were  dead  ;  and  that  the  limitation  in  favor  of 

soph  lineal  descendants  was  not  void  for  remoteness. 


Appeal  front  the  Circuit  Court  of  Sumter. 
Tried  before  the  Hon.  William  8.  Mtjdd, 

Tins  tuition  was  brought  by  James  B.  Smith  and  oth- 
ers, who  were  the  children,  grandchildren,  and  great- 
grandchildren of  Sfon  Smith,  deceased,  against  William 
II.  Jemison  ;  and  was  commenced  on  the  12th  April, 
1857'.  The  defendant  pleaded — 1st,  the  general  issue; 
2d.  tli"  statute  of?  limitation  ol  six  years.  The  plaintiffs 
claimed  the  slaves  in  controversy,  under  a  clause  in  the 
will  of  their  tin'  aid  Sion  Smith,  deceased,  which 

was  in  the  following  words:  "I  will  and  bequeath  to  my 
beloved  wife,  Elizabeth  Smith,  one  negro  woman  named 
Jane,  toher  her  life-time;   then  she,  and   all  her  increase 
from  the  date  nirtety-s<  wn,  to  be  equally  divided  among 
the  live  children,  if  living  at  that  time;  if  not,  to  their 
heirs  lawful! begotten  of  their  body;  if  none   such  heirs, 
to   be   eqnally  divided  it   among   themselves  when  the 
youngeety child  comes  of  age  ;  and   after  my  wife's  life- 
time, the   wench   to   be  hired  to  support  her  children  ;  -if 
labor  will   not  Bupport   her  children,  they  all   must 
help  her,  as  they  are  to  reap  the  property;  and  my  desire 
is,  that  the  children  should  be  kept  together,  and  schooled 
upon  the  hire  of  the  negroes,  til  they  come  of  age  to  de- 
mand them  —  the  6oya  at  twenty-one,  the  girls  at  sixteen 
years  of  age  ;    and  til  then,  the  hire  to  go  to  the  support 
of  all  the  children,  both  black  and   white.     My  desire  is, 
that  if  ary  one  of  the  children  should  die  hefore  it  comes 
of  ag<1,  that  they  all  should  have  his  legacy  equally  divi- 
ded   among  them;   and   if  (try   one   of  the   negroes  dies, 
they  all  shall  make  him   equal    with   themselves."     The 
slaves  in  controversy  were  the  descendants  of  the  woman 


OF  ALABAMA.  143 


Jemison  v.  Smith. 


Jane,  mentioned  in  the  above-copied  clause  of  Sion 
Smith's  will ;  were  brought  to  this  State  in  1825,  by  one 
A.  M.  Griffin,  who  had  married  one  of  the  testator's 
granddaughters j  were  sold  under  execution  against  said 
Griffin,  and  were  bought  at  the  sheriff's  sale  by  Clai- 
borne Griffin,  who,  about  the  year  1840,  sold  them  to  the 
defendant,  at  less  than  their  full  valiie.  The  testator's 
widow  died  in  May,  1851. 

At  the  May  term,  1858,  (Hon.  A.  A.  Coleman  pre- 
siding.) the  plaintiffs  asked  leave  to  amend  their  com- 
plaint, by  striking  out  the  name  of  John  Jordan,  one  of 
the  plaintiffs,  who  was  proved,  by  .the  depositions  then 
on  file,  to  have  been  dead  at  the  commencement  of  the 
suit  ;  and  the  court  allowed  the  amendment,  against  the 
defendant's  objection;  to  which  a  bill  of  exceptions  was 
reserved  by  the  defendant. 

At  the  jSTovember  term,  1858,  when  the  cause  was  called 
for  trial,  the  defendant  moved  to  suppress  the  depositions 
which  had  been  taken  by  the  plaintiffs  before  the  com- 
plaint was  amended,  as  above  stated,  because  they  were 
taken  before  the  said  amendment  was  made.  The  court 
overruled  the  motion,  and  allowed  the  depositions  to  he 
read;  to  which  the  defendant  excepted. 

On  the  trial,  the  plaintiffs  offered  in  evidence  a  tran- 
script from  the  records  of  the  court  of  ordinary  of  Wash- 
ington county,  Georgia,  properly  certilied  under  the  act 
<<i  congress  of  1790,  and  containing — 1st,  a  copy  of  the 
will  of  Sion  Smith,  deceased,  which  was  dated  the  14th 
July,  1T98,  and  to  which  the  names  of  Frederick  Coopi  r 
ami  Elizabeth  Smith  purported  to  be  subscribed  as  attest- 
ing witness  > ;  2d,  an  affidavit,  of  which  the  following  is 
1 1 : 

" State  of  Georgia,    "I      Frederick  Cooper,  being  du- 
Wushington    county.  |  ly  sworn,  saith,  that  he  believes 
thai  name  U>  the  hist   part   of  the  within 

rument  of  writing.  "  Frsderii  a." 

"  Su-..rn  to,  before  me,  this  21at  day  I 
of  Manh,  1,799.      J.  Thigpen,  .1.  P." 


144 SUPREME  COURT 

Jemisbn  v.  Smith. 

Beneath  this  certificate  was  an  entry,  or  memorandum, 

in  those  words:  "Britton  Smith,  Jordan  Smith,  sworu 
itors."  The  transcript  also  contained  a  ''copy  of  the 
bill  of  appraisement  on  the.  estate  of  Sion  Smith,  de- 
ceased," wbicb  was  dated  the  12th  August,  1799,  and 
purported  to  be  "certified"  by  three  "sworn  apprais- 
ers;" a  "copy  of  die  bill  of  the  sale  on  the  estate  of  Sion 
Smith,"  dated  November,  IT!''.',  and  purporting  to  be 
"certified  by  Britton  Smith  and  Jordan  Smith,  execu- 
tors;" a  "copy  of  second  inventory  and  appraisement," 
dated  the  27th  December,  1799,  and  purporting  to  be 
"certified  and  sworu  to,  8th  January,  1800,"  by  Jordan 
Smith,  before  "T.  Watts,  cl'k;*'  an  affidavit  by  Eliza? 
beth  Smith  and  Frederick  Cooper,  taken  by  a  justice  of 
the   peace,  on   th  August.  IT!''.',  to  the   eft'ect   that 

they,  "having  boon  removed  by  the  inferior  court  of  the 
county  and  State  aforesaid  from  their  administration  on 
the  estate  of  Sion  Smith,  deceased,"  "bave  resigned  into 
the  hands  of  Britton  Smith  ami  Jordan  Smith,  who  were 
established  executors  to  the  last  will  and  testament  of 
said  Sion  Smith,"  all  the  property  in  their  hands  belong- 
ing to  said  estate;  a  receipt,  dated  the  8th  August,  179-9; 
and  purporting  to  be  given  by  lb-it  ton  Smith  and  Jordan 
Smith,  "executors  to  said  estate,"  for  the  property  de- 
livered to  them  by  Elizabeth  Smith  and  Frederick  Coop- 
er: and  several  entries,  purporting  to  show  the  annual 
income   and    expenditure   of  said  estate,  and  to  be  sworn 

to  by  Jordan  Smith,  before  a  justice  of  the  peace,  in  the 
following  form  : 

-  Book  A.,  page  :'.7. 
1802.  The  income  of  Sion  Smith's 
tate,  tie-  hire  <>f  fun-  slave-,  amounting  to..  $282  87 
Expenditures  of  Sion  Smith's  estate,  amounting 

to 101)  03 


Services  excepted. 

Jordan  Smith,  Ex'r." 

"  The  justness  of  the  above  sworn  to,  ^ 

this  7th  December,  1803,  before  me.         I  % 

1.  Irwin,' J.  P."      I 


OF  ALABAMA.  115 


Jemison  v.  Smith. 


The  defendant  objected  to  the  reading  of  this  entire 
transcript,  as  a  whole;  and  also  to  that  part  which  pur- 
ported to  be  a  copy  of  the  will  of  Sion  Smith,  and  to  the 
remaining  portions,  separately.  The  court  overruled 
each  of  the  objections,  and  allowed  the  transcript  to  be 
read  ;  to  which  exceptions  were  reserved  by  the  defendant. 

During  the  further  progress  of  the  trial,  the  court  al- 
lowed the  plaintiffs  to  prove,  against  the  defendant's  ob- 
jection, "that  A.  M.  Griffin,  while  he  was  in  possession 
of  the  slaves  Judy  and  her  children,  said,  that  they  had 
been  loaned  to  him  by  Sion  Smith's  widow,  and  were  held 
under  Sion  Smith's  will,  to  be  returned  at  her  death,  to 
be  divided  as  directed  by  said  will;"  also,  '•  that  Clai- 
borne Griffin,  while  he  was  in  possession  of  said  slaves, 
said,- that  there  was  a  dispute  about  the  title,  and  he 
would  only  sell  such  a  title  as  he  got  from  the  sheriff,  as 
he  was  informed  that  the  heirs  of  Sion  Smith  would  claim 
them  at  the^death  of  his  widow."  To  the  admission  of 
these  declarations  exceptions  were  reserved  by  the  de- 
fendant. 

The  plaintiffs  read  in  evidence  the  constitution  and 
several  statutes  of  the  State  of  Georgia,  relating  to  the 
organization  and  jurisdiction  of  courts  of  ordinary,  and 
abolishing  estates-tail,  and  the  case  of  Jordan  v.  Cam- 
eron, reported  in  12  Geo.  Rep.  2G7  ;  and  the  defendant 
read  in  evidence  the  case  of  Gray  v.  Gray,  reported  in 
20  Geo.  Rep,  804;  all  of  which  are  made  parts  of  the  bill 
of  exceptions.  The  case  of  Jordan  v.  Cameron  was  a 
bill  in  chancery,  filed  by  the  heirs,  assignees,  and  legal 
representatives  of  Sion  Smith's  live  children,  in  1852,  to 
laves,  who  were  alleged  to  he  the  dc- 
dants  of  the  woman  Jam';  in  which  the  court  held, 
that  the  will  of  Sion  Smith,  being  more  than  tifty  years 
old,  "was  admissible  as  an  ancient  paper,"  although  the 
probate  was  defective.    In  tb<  ;'  Gray  v.  Gr«y,the 

following    points    wire    decided:     1.  In  G  •  it  was 

irly  policy  to  abolish  the  English  law  of  entails  and 
it  U  uded  to  preserve,  undivided,  landed 
:i   families.     2.  A  beqae8l  of  personal  •  roperty, 


146  SUPREME  COURT 


Jcmison  v.  Smith. 


which    would    create   an    estate-tail   under   the  English 
statute  de  donis,  vests  an  absolute,  unqualified,  fee-simple 
estate  in   the  first  taker.      3.  The   construction    of  the 
statute  de  donis  must  be   determined  by  the  English  de- 
cisions.     4.  Under  a  bequest,  of  slaves  to  the  testator's 
two  daughters  Jane  and  Sarah,  to  be  equally  divided  be- 
tween them;  "and   should  the  said  -lane  and  Sarah,  or 
either  of  them,  die  without  an   heir  begotten  of  their 
bodies,  then  their  part  or  parts  to  be  equally  divided  be- 
tween  Polly  Morrison,  mv  said   sons,  and  the  surviror," 
the  limitation  over  is  void  for  remoteness. 
The  court  charged  the  jury  as  follows: 
"1.  That  if  they  should  find  for  the  plaintiffs,  the  plain- 
tiffs would  he  entitled  to  recover  reasonable  hire  from  the 
death  of  Sion  Smith's  widow,  as  shown  by  the  proof. 

"2.  That  the  bequest  of  Jane  and  her  increase,  in  the 
will  of  Sion  Smith,  to  his  widow  and  children  and  the 
heirs  of  their  bodies,  was  not  void  for  uncertainty. 

•:;.  That  the  provisions  of  said  will,  under  which  the 
plaintiffs,  as  children,  grandchildren,  and  great-grand- 
children of  Sion  Smith,  claim  in  this  action,  are  not  void 
under  the  laws  of  Georgia  in  evidence;  and  the  said 
grandchildren  and  great-grandchildren  can  take  under 
said  will. 

"4.  That  if  they  believed  all  the  evidence  before  them, 
they  had  aright  to  presume  that  the  said  will  was  proper- 
ly admitted  to  probate;  and  if  they  so  believed  and  pre- 
sumed, the  copies  before  them  were  evidence  of  said  will, 
to  the  same  effect  that  the  original  would  be." 

The  defendant  excepted  to  each  of  these  charges;  and 
he  now  assigns  them  as  error,  together  with  all  the  other 
rulings  of  the  court  to  which  he  reserved  exceptions. 

Tuknkk  Rbavis,  for  appellant. — 1.  Section  2403  of  the 
Code  docs  not  apply  to  0  case  in  which  one  of  several 
plaintiffs  is  dead  at  the  commencement  ot  the  suit.  Such 
a  suit  is  a  nullity,  or,  at  least,  ia  subject  to  be  dismissed 
when  the   fact  is  brought  to  the  notice    of   the    court. 


OF  ALABAMA.  14T 


Jemison  v.  Smith. 


Terms  cannot  be  imposed  on  a  dead  man,  nor  can  he  be 
compelled  to  pay  costs. 

2.  The  depositions  taken  before  the  complaint  was 
amended,  ought  to  have  been  suppressed,  because  the 
amendment  effected  a  substantial  change  of  parties  — 
Horback  v.  Knox,  6  Burr,  377.  In  the  cases  cited  to  this 
point  for  the  appellee,  the  amendment  worked  no  change 
of  parties. 

3.  The  transcript  from  the  records  of  the  court  of  or- 
dinary in  Georgia,  containing  what  purported  to  be  a 
copy  of  the  will  of  Sion  Smith,  ought  not  to  have  been 
admitted.  It  docs  not  show  that  the  proof  of  the  will 
was  taken  by  the  court;  nor  that  the  probate  of  it  was 
granted  by  the  court;  nor  that  it  was  ordered  by  the 
court  to  be  recorded  ;  nor  that  letters  testamentary  were 
granted  by  the  court  ;  nor  that  any  executorial  bond  was 
given  ;  nor  that  any  settlement  by  the  executor  was  acted 
on  1)}'  the  court;  nor,  in  fact,  that  any  action  of  the  judi- 
cial mind  was  had  on  any  ot  the  matters  therein  con- 
tained. All  the  proceedings  appear  to  have  been  ex-partc, 
and  all  the  affidavits  to  have  been  made  before  a  justice 
of  the  peace.  Under  the  constitution  and  statute-  of 
Georgia,  which  were  read  in  evidence,  cfmrts  of  ordinary 
arc  courts  of  limited  and  special  jurisdiction  ;  conse- 
quently, the  record  must  affirmatively  show  the  facts  ne- 

ftry   to  sustain  the  jurisdiction. — McCartney  v.  Cal- 
houn, U   Ala.  110;  Steen  v.  Stcen,  25  Miss.  530;  Gunn 
v.  Howell,  27  Ala.  663;   Wyatt  v.  Kambo,  21)  Ala.  510; 
Lamar  v.  Commissioners'  Court,  21  Ala.  7?2 ;' Commis- 
sioners' Court  v.  Thompson,  18  Ala.  694.      In  Jordan  v. 
ion.  12  Geo.  267,  the  demurrer  admitted,  "that  the 
will    was   proved  and  admitted  to  record  in  the  court  of 
ordinary,  and  that  letters  testamentary  were  issued  there- 
on;"  and  yet  the  court  expressly  say,  that  t-he   will  was 
not  property  admitted  to  record,  and  was  admissible  only 
:i  ancient  paper. 
I.  Lf  the  will  was  not  probated,  the  paper  purporl 
to  bf  :i  copy  ought   not  to  have  been  received  for  any 
purpose.     The   rule  authorizing  a'will,  more  than  thirty 


148 SUPREME  COURT ■ 

Jemison  v.  Smith. 

years  old,  to  be  read  iti  evidence  as  an  ancient  document, 
without  proof  of  probate,  applies  only  to  wills  devising 
real  estate;  which,  in  England,  where  the  rule  originated, 
pass  the  title  to  real  estate,  without  probate  ;  but  a  will 
of  personalty  cannot  be  received  as  evidence  of  title,  un- 
til it  has  been  probated.  The  rule  applies,  moreover, 
only  where  the  original  paper  is  produced,  or  a  sufficient 
predicate  is  laid  for  the  introduction  of  secondary  evi- 
dence.—Mitchell  v.  Mitchell,  3  S.  &  P.  33. 

5.  The  declarations  of  A.  M.  Griffin  were  not  explana- 
tory of  his  possession,  and  were  clearly  inadmissible. — 
Allen  v.  Prater,  30  Ala.  458;  Briee  v.  Lide,  30  Ala.  047; 
Perry  v.  Graham,  18  Ala.  822;  McBride  v.  Thompson, 
8  Ala.  650;  Abney  v.  Kingsland,  10  Ala.  355. 

6.  The  declarations  of  Claiborne  Griffin  were  mere 
hearsay,  and  were  equally  inadmissible. 

7.  The  defendant,  being  in  lawful  possession  of  the 
slaves,  was  not  liable  for  hire  from  the  death  of  the  tenant 
for  life,  but  only  from  the  time  a  demand  was  made,  or 
from  the  commencement  of  the  suit. — Brock  v.  Ileadon, 
13  Ala.  370;  Vaughn  v.  Wood,  5  Ala.  304;  Lawson  v. 
Lay,  24  Ala.  l&L 

8.  The  bequest,  under  which  the  plaintiffs  claim,  is 
void  for  uncertainty.  No  "sensible  construction  can  be 
placed  upon  the  words,  which  will  harmonize  all  parts  of 
the' clause.  The  heirs  of  the  body,  it  declares,  take  noth- 
ing, unless  all  the  five  children  be  dead  at  the  death  of 
the  mother;  and  if  they  all  be  dead,  and  there  be  "none 
such  heirs,"  the  negroes  are  "to  be  equally  divided  among 
themselves."  In  the  following  cases,  although  the  lan- 
guage was  not  more  ambiguous  or  uncertain  than  in  this 
case,  the  bequest  was  held  void  for  uncertainty:  Hoffman 
v.  Ilankey,  3  My.  &  K.  376;  Newton  v.  Richards,  2  Bea- 
vau,  112;  Mohun  v.  Mohun,  1  Swanst.  301;  Abraham  v. 
Alinan,  1  Russell,   500;  Bayeaux  v.  Beaux,  8  Paige,  333. 

•0.  The  will  attempts  to  create  an  estate-tail,  or  a  limi- 
tation over  whieh  is  too  remote;  both  of  which  arc  void 
in  Georgia,  where  the  will  was  made. — Gray  v.  Gray, 
20  Geo.  808;  Marbury  &  Crawford's  Digest,  220,  §  5. 


OF  ALABAMA. 149 

Jemison  v.  Smith. 


Geo.  G.  Lyon,  contra. — 1.  Section  2403  of  the  Code 
authorizes  an  amendment  of  the  complaint,  by  striking 
out  the  name  of  a  dead  plaintiff,  equally  with  a  living 
plaintiff;  and  no  inconvenience  can  result  from  such  an. 
amendment. 

2.  The  motion  to  suppress  the  depositions  was  properly 
overruled. — Agee  v.  Williams,  30  Ala.  636;  Goldsmith, 
Forcheimer  &  Co.  v.  Picard,  27  Ala.  142. 

3.  The  transcript  was  properly  certified  under  the  act 
of  congress,  and  was  competent  evidence.  That  the  copy 
of  the  will  was  properly  admitted,  see  11  Ala.  721 ;  8  Ala. 
390;  24  Ala.  260;  6  Humph.  501;  10  Bin.  &  Mar.  78; 
2  U.  S.  Digest,  234,  §§  643-15.    ' 

4.  The  declarations  of  A.  M.  Griffin  and  Claiborne 
Griffin  were  made  while  they  were  respectively  in  pos- 
session of  the  negroes,  and  were  in  disparagement  of 
their  title;  consequently,  those  declarations  were  admis- 
sible evidence  against  the  defendant,  who  claimed  under 
said  Griffins.— 19  Ala.  722;  27  Ala.  458,  523,  651;  28  Ala. 
552,  236;  29  Ala.  174,  188,457. 

5.  As  to  the  correctness  of  the  first  charge  given  by 
fee  court,  see  12  Ala.  135;  23  Ala.  377;  21  Ala.  151; 
Story  on  Bailments,  §  414. 

6.  As  to  the  correctness  of  the  second  charge,  see 
21  Ala.  459;  23  Ala.  818;  25  Ala.  292. 

7.  As  to  the  correctness  of  the  third  charge,  see  same 
cases;  also,  18  Ala.  149;  17  Ala.  62;  7  Ala.  246;  2  Jar. 
on  Wills,  51,  note  1;  3  Porter,  452. 

8.  As  to  the  correctness  of  the  fourth  charge,  see  Gantt's 
Adm'rv.  Phillips.  2:]  Ala.  275,  and  cases  there  cited. 

A.  J.  WALKER,  C.  J.— [Feb.  12,  1861.]— If  the  will 
of  Sion  Smith  was  not  admitted  to  prebatc,  it  follows, 
that  it  cannot  be  read  as  evidence  of  title  to  personal 
property,  ami  that  a  copy  of  it  cannot  be  certified,  so.  as 
to  become  evidence  under  the  act  of  congress  of  1790. 
It  is,  therefore,  a  very  important  question,  whether  the 
transcript  of  mccry  court  for  Washington  county, 

Georgia,  shows  that  there  was  a  probate  of  the  will.  All 


150 SUPREME  COURT 

Jemison  v.  Smith. 

that  we  find  in  the  transcript,  bearing  upon  this  point,  is 
an  affidavit  by  one  of  the  subscribing  witnesses,  that 
"  he  believes  that  he  assigned  his  name  at  the  last  part  of 
the  within  instrument  of  writing,"  taken  before  "J. 
Thigpen,  J.  P. ;''  and  following  the  affidavit,  an  entry 
that  the  executors  were  sworn.  The  record  also  shows, 
that  the  executors  discharged  several  of  the  duties  of  the 
executorial  trust,  and  were  recognized  as  executors  by  the 
court. 

[2.]  We  must  judicially  know,  that  the  proceedings  of 
courts  of  the  grade  and  jurisdiction  of  the  court  of  ordi- 
nary in  Georgia,  as  indicated  by  the  constitution  and 
laws  of  the  State  in  evidence  in  this  case,  are  lamentably 
loose,  and  that  their  records  are  made  up  with  peculiar 
carelessness.  It  is  the  duty  of  courts,  in  which  the  va- 
lidity of  such  proceedings  is  assailed,  to  construe  the 
lanofuao-e  used  in  a  lisrht  as  favorable  to  their  maintenance 
as  it  will  admit,  without  undertaking  to  supply  that 
which  is  absolutely  wanting. — King  v.  Kent,  31  Ala. 
542. 

[3.]  In  the  probate  of  wills,  there  is  but  little  formality. 
It  seems  that  there  was,  under  the  ecclesiastical  law,  no 
formal  announcement  of  the  judgment  of  the  court  upon 
the  sufficiency  of  the  proof;  but  the  proof  made  was  en- 
dorsed upon  the  will,  and  letters  testamentary  issued  to 
the  executors. — 2  Swinburu  on  Wilis,  806;  1  Williams 
on  Ex.  239;  Dayton  on  Surrogates,  191;  Slaughter  v. 
Cunningham,  21  Ala.  260.  It  is  not  shown  to  us,  that, 
at  the  time  when  the  will  now  under  consideration  was 
recorded,  there  was  any  law  in  Georgia,  requiring  any 
greater  particularity.  Indeed,  the  exemplification  of  a 
will,  with  no  greater  evidence  of  probate,  was  by  this 
court,  in  Slaughter  v.  Cunningham,  supra,  held  admissi- 
ble in  evidence,  upon  certificates  pursuant  to  the  act  of 
congress  of  1790.  The  only  manifestation  of  the  judg- 
ment of  the  court  upon  the  sufficiency  of  the  proof,  which 
seems  to  have  been  in  practice  given,  where  greater  form- 
ality was  not  exacted  by  the  statute,  was  the  letters  tes- 
tamentary,  and  the  recording  of  the  instrument.     We 


OF  ALABAMA. 


Jemieon  v.  Smith. 


accordingly  find  the  expressions  probate  and  letters  tes- 
tamentary used  as  convertible  terras. — 1  Williamson  Ex. 
239;  Dayton  on  Sur.  194;  1  Jar.  on  Wills,  214,  chap,  ix, 
§  1 ;  King  v.  Netherseal,  4  Tewm,  258.  In  the  case  of  Lay 
v.  Kennedy,  (1  Watts  &  Ser.  390,)  there  was  no  judgment 
as  to  the  sufficiency  of  the  proof;  and  the  court  said: 
"Although  there  is  no  formal  decree,  that  the  proof  of 
the  will  was  deemed  good;  yet  that  the  will  was  admitted 
to  probate  we  cannot  doubt,  as  otherwise  the  grant 
of  the  letters  of  administration  would  be  preposterous 
and  absurd."  It  is  thus  evident,  from  the  practice  in  the 
proving  of  wills,  from  the  manner  in  which  the  terms 
probate  and  letters  of  administration  are  used,  and  from 
^the  very  nature  of  the  acts  themselves,  that  the  court,  in 
spreading  the  will  upon  the  record,  and  granting  to  the 
executors  authority  to  execute  it,  does  assert  the  estab- 
lishment of  the  will  in  its  judgment.  We  think,  there- 
fore, that  the  record,  upon  a  fair  construction,  must  be 
regarded  as  asserting  the  appointment  and  qualification 
of  the  executors,  and  that  the  will  was  put  upon  the  rec- 
ord; and  these  facts  involve  in  themselves  an  assertion 
of  the  probate  ot  the  will. 

The  sufficiency  of  the  proof  was  a  question  lor  the 
court  which  took  the  probate,  and  its  decision  cannot  be 
collaterally  assailed.  It  is,  therefore,  not  important  for 
us  to  inquire,  whether  the  affidavit  in  the  record  should  be 
intended  to  be  the  only  proof  upon  which  the  court  acted, 
or  whether  it  was  sufficient. 

[4.]  The  view  of  the  subject  which  we  have  taken,  also 
renders  it  unnecessary  for  us  to  inquire,  whether,  from 
lapse  of  time,  the  probate  could  be  presumed,  under  the 
circumstances  shown;  but  upon  that  point  we  subjoin  a 
list  of  authorities,  which  pertain  to  the  question,  whether 
Such  presumption  might  be  drawn:  Jordan  v.  Cameron, 
12  Georgia,  267;  Calvert  v.  Fitzgerald,  Littell's  Sel.  Cas* 
-392;  Battle  v.  llolley,  6  Greenleaf,  145;  Giddihgs  v. 
Smith,  15  Verm.  344;  Mc Arthur  v.  Carrie,  82  Ala.  7."., 
and  cases  cited. 

[5.]  The  other  parts   or  the   Georgia   record,    besides 


152 SUPREME  COURT         

Jemison  v   Smith. 

the  will,  affidavit,  and  appointment  of  executors,  could 
have  had  no  other  effect,  than  to  support  the  conclusion 
that  the  will  was  admitted  to  probate;  and  there  could 
be  no  injury  from  their  admission  in  evidence. 

[6.]  The  declarations  of  A.  M.  Griffin  and  Claiborne 
Griffin  were  admissible  in  evidence.  They  were  the 
declarations  of  persons,  under  whom  the  defendant  held, 
adverse  to  their  interest;  and  were  relevant,  because  they 
contributed  to  the  identification  of  the  property,  if  for 
no  other  reason. 

[7-8.]  The  two  points  made  by  the  appellant,  that  the 
court  had  no  authority  to  allow  an  amendment,  by 
striking  ontthe  name  of  a  plaintiff  who  was  dead  at  the 
commencement  of  the  suit,  and  that  depositions  takeif. 
before  the  amendment  should  have  been  suppressed,  are 
alike  unmaintainable.  The  statute  authorizes  the  making 
of  amendments,  by  striking  out  the  names  of  parties; 
and  we  can  perceive  no  reason  for  restricting  the  authority 
to  cases  where  the  part}'  was  living  at  the  commencement 
of  the  suit.  As  the  amendment  did  not  vary  the  issue, 
or  render  the  testimony  inapplicable,  and  there  was  noth- 
ing in  ..' ^  Kifct  that  the  deposition  was  taken  before  the 
amendment  calculated  to  injure  the  defendant,  neither 
justice,  nor  any  rule  of  practice  known  to  us,  required 
that  the  depositions  should  be  suppressed. — Goldsmith  v. 
Picard,  27  Ala.  142;  Agee  v.  Williams,  30  Ala.  636. 

[9.]  We  cannot  agree  that  the  clause  of  the  will,  under 
which  the  plaintiffs  claim,  is  void  for  uncertainty.  "In 
order  to  avoid  a  will  for  uncertainty,  it  must  be  incapa- 
ble of  any  clear  meaning." — Mason  v.  Robinson,  2  Sim. 
&  Stu.  295.  Such  is  not  the  character  of  the  item  of  the 
will  which  we  are  called  upon  to  construe.  We  think 
we  take  no  undue  liberty  with  the  words,  when  we  inter- 
pret it  as  creating  a  life-estate  in  the  widow,  with  re- 
mainder to  tin'  live  children  of  the  testator,  if  living  at 
her  death;  and  if  any  of  the  five  children  should  die  before 
the  death  of.  the  widow,  then  to  such  of  the  five  children 
as  might  be  living  at  that  time,  and  the  then  existing 
heirs  of  the  body  of  such  as  might  be  dead;  and  if  any 


OF  ALABAMA.  153 


Jemison  v.  Smith. 


oi  the  five  children  should  die  before  the  death  of  the 
widow,  and  leave  no  descendants,  then  to  the  survivinsr 
children.  The  exigency  of  this  case  does  not  require  us 
to  extend  our  construction  farther.  It  is  unnecessary  for 
ua  to  inquire  into  the  effect  of  the  provision,  "that  if  any 
one  of  the  children  should  die  before  it  comes  of  a<re. 
that  they  all  should  have  his  legacy  divided  among  them." 
It  does  not  appear  that  any  of  the  children  died  before 
coming  of  age.  It  is  manifest,  however,  that  the  opera- 
tion.of  this  clause  would  be  perfectly  consistent  with  that 
of  the  previous  item,  except  in  the  single  contingency  of 
some  of  the  children  dying  under  age  leaving  issue. 
Whether,  in  that  contingency,  such  a  construction 
could  have  been  adopted  as  would  have  reconciled  the 
two  clauses,  it  is  unnecessary  to  inquire.  The  phrase 
heirs  of  (he  body  is  shown  by  the  context  to  have  been 
used  in  the  sense  of  lineal  descendants  living  at  the  death 
of  the  tenant  for  life,  or  at  the  time  when  the  youngest 
child  should  come  of  age. — Powell  v.  Glenn,  21  Ala.  458; 
Williams  v.  Graves,  17  Ala.  02;  Flinn  v.  Davis,  18  Ala. 
132;  Bell  v.  Hogan,  1  St.  536.  The  limitation  over  upon 
failure  of  heirs  of  the  body,  was,  therefore,  not  too  remote; 
and  the  persons  who,  at  the  designated  time,  answered  to 
the  legal  description  of  heirs  of  the  body,  would  take  in 
default  of  such  of  the  testator's  five  children  as  might 
not  then  be  living. — Shackleford  v.  Bullock,  34  Ala.  418  ; 
2  Jar.  on  WilhC  1-17. 
Ju  Igment  affirmed. 


11 


154 SUPREME  COURT 

Martin  7.  Reed. 


MARTIN  vs.  REED. 

•  [action  on  promissory  note,  against  maKSr.] 

1.  Validity  of  contract  made  with  slave. — A  promissory  note,  given  to  a 
slave,  for  money  borrowed  from  him  by  a  white  man,  is  void,  and 
will  not  support  an  action. 

Appeal  irom  the  Circuit  Court  of  Russell. 
Tried  before  the  Hou.  Robert  Dougherty. 

Tins  action  was  brought  by  John  M.  C.  Reed,  against 
W.  13.  Martin,  and  was  founded  on  the  defendant's  prom- 
issory note  for  $58,  dated  the  14th  January,  1856,  and 
payable  on  the  14th  January,  1857.  The  complaint  was 
in  the  form  prescribed  by  the  Code,  (page  551,)  for  an 
action  on  a  promissory  note  "by  payee  against  maker." 
The  defendant  filed  two  pleas,  the  second  of  which  was 
in  these  words:  "  For  answer  to  the  said  complaint,  the 
defendant  says,  that  said  promissory  note,  which  is  the 
'foundation  of  this  suit,  was  given  to  Henry,  a*  slave  of 
John  Godwin,  deceased,  for  money  borrowed  from  said 
Henry;  that  plaintiff  obtained  said  note  from  said  Henry 
by  transfer  of  said  Henry,;  that  said  Henry  acted  and  con- 
tracted for  himself,  and  that  his  transfer  to  plaintiff*  was 
void;  wherefore  defendant  says,  that  plaintiff"  ought  not 
to  recover  in  this  action."  The  circuit  court  sustained  a 
demurrer  to  this  plea,  and  its  judgment  on  the  demurrer 
is  now  assigned  as  error. 

L.  W.  Martin,  for  the  appellant,  cited  Stanley  v.  Nel- 
son! 28  Ala.  614;  Tannis  v.  Doe  d.  St.  Gyre,  21  Ala.  454; 
Shanklin  v.  Johnson,  9  Ala,  271;  Brandon  v  Bank  of 
Huntsvillc,  1  Stewart,  320;  Code,  §  1018. 

PfeiLips  k  Weems,  . — The  law   presumes,    that 

money  in  the  possession  of  a  slave  belongs  to  his  master, 
and  that  all  transfers,  kc.}  are  made  by  and  with  the  con- 


OF  ALABAMA.  155 


Martin  v,  lived. 


sent  of  the  master;  and  the    plea  does   not  state  facts 
Which  negative  this  presumption. 

■  STONE,  J.— [March  30,  18G1.]— The  statu*  of  a  slave, 
under  our  laws,  is  one  of  entire  abnegation  of  civil  ca- 
pacity.    He  can   neither    make   nor   receive    a    binding 
promise.     lie  has  no  authority  to  own  anything  of  value, 
nor  can  he  convey  a  valuable  thing  to  another.     Hence, 
he  cannot,  of  himself,  give  a  consideration,  "valuable  in 
the  law,"  which  consideration  is   necessary  to  uphold  an 
executory  promise;  and  indeed,  "  any  person  who  sells  to, 
orjmysor  receives  from  any  slave,  any  article  or  com- 
modity of  any  kind  or  description,  [other  than  vinous  or 
spirituous  liquors,]  without  the  consent  of  the   ma 
owner,  or  overseer  of  such  slave,  verbally  or  in   writing, 
expressing  the  articles,"  &c,  is  guilty  of  a  misdemeanor. 
Code,  §  3285.     Vinous  and  spirituous  Hquors  had 
provided  for  in  a  previous  section. — Code,  §  8283.    IL 
received  from  a  slave  comes   within  section  3285.     Y\re 
have,  then,  the   case  of  a  slave,   who   could   not  be  the 
owner  of  money,  but  holding  money  which,  in  the  law, 
was  the  property  of  his  master,  (Webb  v.  Kelly,  a*  the 
present  term,)  having  no  civil  capacity  to  part  with  that 
money,  or  to  receive  a  promise   to   repay  the   same,  but 
who  docs  part  with  it  to  a  white  person, — the   latter,   in 
the  act  of  receiving  it,  committing  an  indictable  of 
underourpenal  statutes.     Nay  more:     Mr.  Martin,  in  re- 
ceiving the  money  from  the  slave,  and   retaining  it, 
jectcd  himself  to  an  action  at  the  suit  of  Mr.  Godwii 
money  had  and  received. — Brandon   v.  Iluntsville  Bank, 
1  Stew.  341.     Can  a  right  of  action  be  based  I 
promise  ae  this? 

In  the  leading  case  of  Fable  v.  Brown,  (2  Hi 

t  of  appeals  of  South  Carolina— Ch.  H: 
ing  the  opinion — ruled,  that  "an  execul 
•  with  a  slave,  cannot  be  enforc< 
be   maintained   on   a  bond  or    note   ffiven 
Neither  masl  uld    nuuiitaiu  an 

In  t h  (2  Con-  . 


156     SUPREME  COURT 

Meaher  v.  Cox,  Brainard  &  Co. 

the  sail  was  brought  by  the  master,  on  a  note  payable  to 
his  slave.  The  court  decided,  that  the  action  could  not 
be  maintained.     See,  also,  Cobb  on  Slavery,  §  268. 

The  defense  set  up  in  the  second  plea,  if  proved,  will 
bar  all  action  on  the  note  in  suit;  and  the  circuit  court 
erred  in  sustaining  the  demurrer  to  it. 

Reversed  and  remanded. 


MEAIIEK  vs.  COX,  BRAINARD  &  CO. 

[bill  in  equity  for  dissolution  and  settlement  of  partnership.] 

1.  When  equity  will  decree  dissolution  of  partnership. — Although  the 
defendants  may  not  have  committed  such  acts  of  misconduct,  or 
.been  guilty  of  such  willful  violation  of  the  terms  of  the  contract, 
as  would  authorize  a  court  of  equity  to  decree  a  disso'ution  of  the 
partnership  for  that  cause  ;  yet  a  dissolution  will  be  decreed, 
where  it  appears  that  they  refuse  to  cany  out  one  of  the  terms  of 
the  articles  of  partnership,  and  insist  that,  in  order  t  >  conduct  the 
partnership  business  successfully,  that  stipulation  must  be  either 
changed  or  disregarded;  that  they  have  refused  to  correspond 
with  the  complainants,  on  matters  connected  with  the  partnership 
business;  that  the  state  of  feeling  between  the  parties  justifies 
the  apprehension,  that  t?ie  joint  business  can  be  no  longer  prose- 
cuted to  the  mutual  advantage  of  all  the  partner:-;  ;  that  there  is 
no  partnership  property  which  might  be  sacrificed  by  a  sale,  and 
that  a  dissolution  would  not  probably  inflict  any  material  injury 
on  either  party. 

2.  Jurisdiction  of  equity,  in  such  case,  not  affected  by  stipulation  provid- 
""J  for  reference  to  arbitration. — A  stipulation  in  articles  of  partner- 
ship, providing  for  a  submission  to  arbitration  of  all  matters  of 
controversy  which  may  arise  among  the  partners,  does  not  take 
away  the  jurisdiction  of  equity  to  decree  a  dissolution. 

3.  Admission  of  new  partners.— -New  members  cannot  be  introduced 
into  an  existing  partnership,  even  by  a  majority  of  the  partners, 
without  the  consent  of  the  others;  yet,  if  the  others  recognize 
and  treat  the  new  members  as  partners,  and  continue  the  business 
with  them  under  the  original  articles,  this  is  sufficient  to  make 


OF  ALABAMA. 157 

Mealier  v.  Cox,  Brainard  &  Co. 

.   them  partners,  and  to  render  the  original  articles  operative  as  be" 
tween  them.    . 

4.    What  constitutes  partnership. — A  contract  between  two  .       >a: 

companies,  engaged  in  carrying  passengers  and  freight  between 
Montgomery,  Mobile  and  New  Orleans,  by  which'it  was  stipulated, 
that  each  company  should  furnish  a  specified  number  of  boats,  of 
which  the  respective  owners  should  retain  the  property  and  as- 
sume the  risk  ;  that  all  losses,  injuries,  and  damages,  caused  to 
third  persons  or  their  property,  whether  by  accident,  negligence, 
want  of  skill,  or  other  cause,  should  be  borne  solely  by  the  owners 
of  the  boat  causing  or  sustaining  such  loss  or  damage  ;  that  the 
compensation  of  agents,  at  specified  points,  to  attend  to  the  joint 

.  business,  and  all  losses  paid  for  injuries  and  damages  on  cotton 
shipped  from  the  river  above  through  to  New  Orleans,  should  be  a 
charge  against  the  joint  fund,  and  be  borne  by  the  parti' 
cording  to  their  respective  interests  ;  that  (he  proceeds  and  earn- 
ings of  each  boat,  deducting  therefrom  the  running  expenses, 
should  be  ascertained  monthly,  and  be  divided  between  the  par- 
ties in  proportion  to  the  number  of  boats  furnished  by  them  re- 
spectively ;  that  uniform  prices  should  be  established,  and  through 
tickets  be  good  on  all  the  boats;  and  that  neither  party  should  be. 
interested  in  any  other  boat  running  on  the  same  route,  or  make 
any  private  contract  for  his  own  advantage,  which  might  be  inju- 
rious to  the  others, — constitutes  the  parties  partners  inter  seee. 

Appeal  from  the  Chancery  Court  at  Mobile. 
Heard  before  the  Hou.  M.- J.  Saffold. 

On  the  7th  July,  1858,  Cox,  Brainurd  k  Co.,  (a  firm 
composed  of  Henry  L.  Jayne,  F.  M.  Johnson,  and  W.  F. 
James,)  J.  M.  &  T.  Mealier,  (a  firm  composed  of  James 
M.  Meaner  and  Timothy  Meaner,)  Byrnes  Mealier*  and 
Stewart  Cayce,  all  of  whom  were  theu  engaged  in  run- 
ning steamboats  on  the  Alabama  river,  carrying  passen- 
gers and  freight  between  Montgomery,  Mobile  and  New 
Orleans,  entered  into  a  contract,  of  which  the  following 
is  a  copy : 

"Articles  of  agreement,  made  and  entered  into  at  Mo- 
bile, this  7th  July,  A.  D.  1858,  by  and  between  the  linn 
of  Cox,  Brainard  &  Co.,  of  the  first  part,  and  the  firm  of 
J.  M.  &  T.  Mealier,  Byrnes  Mealier  and  Stewart  Cayoe, 
of  the  second  part,  all  of  the  city  of  Mobile.  .  that 

the  said   parties,  each  being  owners  of  steamboats  em- 


158  SUPREME  COURT 

Cleaner  v.  Cox,  Brainard  &  Co. 

ployed  in  carrying  freight  and  passengers  to  and  from 
Mobile,  have  agreed  to  employ  and  run  steamboats  in 
the  trade  of  the  Alabama  river,  and  to  New  Orleans,  in 
concert;  each  party  to  furnish,  properly  equipped  and  fit 
for  service,  at  their  own  cost  and  expense  respectively,  a 
certain  number  of  boats,  as  agreed  between  them,  and  to 
divide  between  them,  in  certain  proportions,  the  net  pro- 
ceeds of  their  freight,  passage-money,  and  other  earn- 
ings, as  they  may  accrue,  after  satisfying  their  running 
expenses.  Whereupon,  to  accomplish  said  object,  the 
said  parties  have  contracted,  agreed,  and  mutually  stipu- 
lated with  each  other,  as  follows:" 

(The  first  three  clauses  provide,  that  Cox,  Brainard  & 
Co.  shall  furnish  ten,  and  the  other  parties  two  steam- 
boats, which  are  specified  by  name,  and  a  particular  part 
of  the  business  allotted  to  each, — some  to  run  between 
Mobile  and  New  Orleans,  and  others  between  Mobile  and 
Montgomery;  some  during  the  winter  season,  or  high 
water,  and  others  during  the  summer  season.) 

'■4.  It  is  further  mutually  agreed  between  the  parties, 
that  each  of  them  shall,  during  the  continuance  of  this 
agreement,  constantly  keep  ready  provided,  equipped 
and  fit  for  service  their  proportion  of  boats  as  herein- 
afler  stipulated,  so  that  they  may  perform  the  service  re- 
quired of  them;  and,  in  the  event  of  the  loss  or  disabling  * 
of  any  of  paid  boats,  they  shall  be  replaced,  when  wanted, 
by  the  proper  party,  by  others  fit  for  the  service,  as  near 
as  may  be. 

"5.  It  is  also  agreed,  that  the  said  several  boats  shall 
be  and  remain  the  property  of  each  of  the  parties  re- 
spectively, as  heretofore  ;  that  they  shall  continue  to  be 
the  owners  of  said  boats,  and  they  shall  be  at  the  risk  of 
their  respective  owners  in  all  things.  All  repairs,  such  as 
are  usually  made  by  the  crews  of  the  boats  while  in  use, 
causing  no  delay  in  the  running  of  the  boats,  shall  be 
made  by  their  crews  respectively;  but  no  delay  shall  be 
allowed,  to  the  end  that  repairs  may  be  made  by  the 
crews;  and  where  repairs  are  needed,  they  shall  be 
promptly  made,  by  proper  workmen,  employed  aud  paid 


OF  ALABAMA.  159 


Mealier  v.  Cox,  Brainurd  &  Co. 


by  the  owners  of  the  respective  boats  at  their  own  cost 
and  charges,  so  that  no  delay  shall  occur,  but  that  the 
boats  shall  be  promptly  fitted  to  perform  their  service; 
and  if  any  boat  be  so  disabled  that  the  necessary  time  for 
repairs  would  cause  the  loss  of  more  than  one  trip,  then 
the  proper  party  shall  furnish  another  boat,  capable  to 
perform  the  service,  in  the  stead  of  the  disabled  boat; 
and  if  the  need  of  repairs,  in  any  case,  shall  cause  the 
loss  of  a  trip  of  any  boat,  then  the  expenses  of  said  boat, 
during  the  time  lost,  shall  be  at  the  charge  of  the  owner. 
"6.  All  losses,  injuries,  and  damage,  either  to  the  ves- 
sel, cargo,  crew,  or  passengers,  or  to  third  persons,  wheth- 
er caused  by  accident,  negligence,  want  of  skill,  or  oth- 
erwise, shall  be  at  the  sole  charge  of  the  owner  ot  the 
boat  causing  or  sustaining  the  loss;  and  the  other  party 
shall  not  be  chargeable,  nor  called  on,  nor  be  responsible 
for  any  such  loss,  in  any  manner,  either  to  the  other 
party,  or  to  third  parties;  and  each  party  shall  answer 
exclusively  for  all  losses,  and  boar  the  same,  and  each 
part}*  shall  be  exclusively  responsible  for  its  own  officers 
and  servants. 

"7.  It  is  furthermore  agreed,  that  the  total  amount  of 
the  proceeds  and  earnings  arising  from  the  use  of  said 
steamboats  shall  be  ascertained  and  divided  monthly  be- 
tween the  said  two  parties,  and  paid  over  to  them  re- 
spectively— say  to  Cox,  Brainard  &  Co.  four-fifths,  and  to 
the  said  Meahers  and  Cayce  (the  said  parties  of  the 
second  part)  one-fifth;  that  correct  and  full  accounts  shall 
be  kept  by  each  boat  of  its  receipts  and  expenditures,  and 
of  all  its  business,  and  that  each  party  shall  account  to 
the  other  of  all  its  business  concerning  the  subject-mat- 
ter of  this  contract;  that  nothing  shall  be  charged,  but 
the  actual  expenses  of  the  running  department  of  said 
bonis,  exclusive  of  the  repairs,  value  of  the  use  of  the 
boats,  insurance,  taxes,  &c.;  the  amount  to  be  divided  to 
be  stated  by  computing  the  earnings,  and  deducting 
therefrom  the  wages,  provisions,  wood,  supplies,  and  all 
daily  expenditures  properly  belonging  to  the  running  of 
the  boats  for  the  time  being.     All  bills  paid  must  be  filed, 


160 SLTPREME  COURT 

Meaher  v.  Cox,  Brainard  &  Co. 

and  proper  vouchers  taken,  in  every  instance,  for  money 
paid;  which,  together  with  the  cash  and  an  account 
thereof,  with  the  books  in  explanation,  shall  be  returned 
at  the  end  of  every  trip,  to  the  respective  offices  in  Mo- 
bile of  each  of  the  parties,  for  the  examination  of  the 
other  party;  and  monthly  settlements  between  the  par- 
ties shall  be  made,  and  divisions  of  the  proceeds,  as  afore- 
said. 

"8.  It  is  agreed,  that  the  prices  of  freight,  passage, 
&c,  shall  be  uniform  on  all  the  boats,  as  fixed  by  the  par- 
ties from  time  to  time  ;  and  that  through  tickets  shall  be 
good  on  all  the  boats;  and  that  no  private  contracts  shall 
be  made  by  either  party,  contrary  to  the  meaning  and 
true  spirit  of  this  agreement,  nor  exclusively  beneficial  to 
either,  nor  injurious  to  either;  but  both  shall,  in  good 
faith,  so  act  as  to  promote  the  joint  advantage,  in  a  spirit 
of  fairness  and  equality  of  right. 

'"J.  It  is  expressly  stipulated,  that,  during  the  contin- 
uance of  this  contract,  neither  party  shall,  under  any 
pretense,  run,  or  be  interested,  directly  or  indirectly,  in 
the  running  of  any  other  boat  or  boats  on  the  Alabama 
river,  or  between  Mobile  and  Xew 'Orleans;  the  profits 
of  all  said  trade  bein£  for  the  joint  account,  under  this 
agreement,  as  herein  stipulated. 

"10.  It  is  mutually  understood,  that  the  salaries  or 
compensation  of  agents  to  promote  the  joint  business,  at 
Montgomery,  Belma  and  New  Orleans,  being  for  the  joint 
benefit  of  both  parties,  shall  be  allowed  as  a  charge,  and 
paid  out  of  the  grass  earnings  of  the  boats,  as  a  charge 
against  the  joint  fund. 

"11.  It  is  further  understood  and  agreed,  that  the  days 
of  departure  of  the  boats  of  the  parties  of  the  second 
part,  while  this  contract  lasts,  shall  be  Sundays  and  Mon- 
days, unless  changed  and  otherwise  arranged  by  the  con- 
sent of  the  parties  to  this  contract. 

"12.  The  parties  respectively  agree,  that  each  shall 
account  to  third  parties,  for  all  lost  freight,  and  also  to 
each  other  for  the  freight-money;  and  that,  at  the  expira- 
tion of  each  year  of  the  duration  of  this  agreement,  each 


OF  ALABAMA.  161 


Mealier  v.  Cox,  Brainard  &  Co. 


party  shall  assume,  as  cash,  all  debts  due  to  each  boat  re- 
spectively, and  account  for  the  amounts  thereof  to  the 
other  party,  as  if  collected. 

"13.  It  is  furthermore  the  agreement  of  the  parties, 
that  all  questions  which  may  arise,  as  to  the  conducting 
of  the  business,  under  this  agreement,  shall  be  discussed 
and  settled  by  consultation,  by  a  committee  of  two  per- 
sons, (one  of  whom  shall  be  named  by  each  party,)  who 
shall  determine  the  sime;  and  each  party  shall  annually 
nominate  a  person  to  act  on  said  committee,  and,  in  case 
of  absence  or  sickness,  each  party  shall  be  at  liberty  to 
appoint  n  substitute;  and  in  case  of  a  difference  of  opin- 
ion between  them  or  their  substitutes,  and  disagreements 
shall  arise,  then  they  shall  call  in  a  third  person,  selected 
by  them  jointly,  who  shall  determine  the  point  or  points 
to  be  settled. 

"14.  It  is  agreed,  that  the  books  of  all  the  boats,  and 
all  accounts,  vouchers,  and  papers,  shall  be  investigated, 
examined  and  audited  by  a  committee  of  two  persons, 
one  of  whom  shall  be  nominated  and  selected  by  each 
party  from  time  to  time,  and  so  often  as  needed,  who 
shall  make  up  the  accounts  for  division  under  this  con- 
tract;  and  that  the  books  and  papers  shall,  at  all  times, 
be  subject  to  the  inspection  and  examination  of  the  said 
Cox,  Brainard  &  Co.,  Meahers,  and  Cayce. 

"15.  It  is  further  agreed,  that  in  case  the  parties  shall 
hereafter  deem  it  to  be  for  their  mutual  advantage  and 
interest  to  increase  the  number  of  steamboats  to  be  used 
and  run  on  the  river  or  lake,  then  each  party  shall  fur- 
nish boats  iu  the  same  proportion  as  under  the  present 
stipulations. 

"16.  It  is  agreed,  that  the  compensation  of  the  exam- 
ining and  auditing  committee,  and  also  all  losses  paid  for 
injuries  and  damage  on  cotton  shipped  from  the  river 
above  through  to  New  Orleans,  shall. be  charged  to  the 
ral  expense  account,  so  that  the  charge  shall  be  borne 
by  the  parties  according  to  their  respective  inter 

"17.  This  agreement  is  to  commence  on  the  5th  July, 
.  ami  to  continue  uutil  the  30th  June,  1868,  (inclu- 


162 SUPREME  COURT 

Mealier  v.  Cox,  Brain ard  &  Co. 


ding  both  days,)  unless  either  party  should  conclude  to 
sell  out  and  abandon  the  business;  then  the  other  party 
shall  have  the  preference  aud  right  to  purchase  the  in- 
terest so  to  be  sold,  at  the  price  and  terms  which  maybe 
offered  for  the  same  by  others,  and  at  which  such  party 
may  be  willing  to  sell. 

"In  witness  whereof,"  &c. 

(Signed  by  each  firm,  and  by  each  partner  individually.) 

On  the  7th  January,  1860,  F.  M.  Johnson,  Robert  Otis 
and  Moses  Waring,  as  partners  composing  the  firm  of 
Cox,  Brainard  &  Co.,  "and  as  trustees  managing  the 
business  of  said  firm,"  filed  their  bill  in  equity  against 
James  M.  Mealier,  Timothy  Mealier,  Byrnes  Mealier,  and 
Stewart  Cayce;  asking  a  dissolution  of  the  partnership 
formed  under  the  articles  above  copied,  and  a  settlement 
of  the  partnership  accounts.  The  complainants  alleged, 
that  said  partnership  went  into  operation,  under  said  ar- 
ticles, at  the.time  therein  provided  ;  that  Henry  L.  Jayne 
afterwards  died,  and  William  F.  James  withdrew  from 
the  firm  of  Cox,  Brainard  &  Co.;  that  on  the  1st  July, 
185'J,  complainants  were  appointed  trustees  to  manage 
the  business  of  Cox,  Brainard  &  Co.,  and,  as  the  active 
partners  of  said  firm,  were  vested  with  all  their  rights 
and  interest  under  the  said  contract  with  the  defendants, 
and  thenceforward  continued  to  carry  on  the  said  part- 
nership jointly  with  them;  that  an  auditing  committee. 
was  appointed,  as  provided  in  said  articles,  who  stated 
the  accounts  of  the  parties,  not  for  exact  periods  of  one 
month,  as  therein  provided,  ("since  that  was  found  in- 
convenient in  practice,  as  the  month  would  often  expire 
while  the  boats  were  on  the  way,")  but  for  every  period 
of  five  round  trips,  which  approximated  to  one  month  ; 
that  this  practice  was,  lor  convenience'  sake,  sanctioned 
and  acquiesced  in  by  all  parties,  and  the  accounts  were 
thus  stated  up  to  the  1st  July,  185'.»,  when  a  balance  of 
$6,081.13  was  found  due  from  the  defendants  to  the  com- 
plainants, which  was  afterwards  settled  and  paid,  but  not 
without  considerable  delay;  that  the  accounts  were  af- 


OF  ALABAMA.  163 


Mealier  v.  Cox,  Br.iinaTd  &  Co. 


terwards  stated  by  the  committee,  as  before,  up  to  the 
9th  August,  the  15th  September,  and  the  18th  October, 
showing  a  large  balance  each  time  in  favor  of  the  com- 
plainants; that  the  defendants  refuse  to  pay  these  bal- 
ances, amounting  ir  all  to  more  than  $G,300,  and  insist 
that  they  will  only  settle  at  the  end  ot  each  year;  t*hat 
the  complainants,  after  repeated  refusals  on  the  part  of 
the  defendants,  placed  their  claim  in  the  hands  of  their 
attorneys  and  solicitors,  with  instructions  to  demand  pay- 
ment and  a  performance  of  the  articles  of  partnership; 
that  said  attorneys  addressed  two  letters  on  the  subject 
to  the  defendants*  to  which  no  reply  was  returned,  and 
afterwards  called  on  them  in  person,  and  notified  them, 
under  instructions  from  the  complainants,  that,  in  con- 
sequence of  their  refusal  to  perform  the  terms  of  the  con- 
tract, the  complainants  proposed  to  consider  the  contract 
as  ended;  that  the  defendants  declined  to  make  any  an- 
swer to  this  proposition  ;  that  the  defendants  also  claim 
"that  the}T  have  the  right,  under  said  articles,  to  give 
credit  for  freight,  &c,  and  are  not  bound  to  distribute,  at 
the  stated  periods,  any  tiling  else  than  money  actually  re- 
alized, but  may  retain  all  other  assets  until  the  end  of 
the  year,  whereas  the  contract  requires  the  distribution 
of  all  proceeds  at  the  monthly  periods ;  "  and  that,  in  con- 
sequence of  these  repeated  refusals  on  the  part  of  the 
defendants  to  comply  with  the  stipulations  of  the  arti- 
cles, the  partnership  can  be  no  longer  successfully  car- 
ried on,  and  the  complainants  have  a  right  to  insist  an  its 
lutiou.  Copies  of  the  articles  of  partnership,  the 
accounts  stated  by  the  auditing  committee,  and  the  let- 
'1  by  the  complainants'  solicitors  to  the  de- 
fendant*, were  appended  to  the  bill  as  exhibits. 

The  defendants  filed  a  joint  answer,  admitting  the 
ution  of  the  contract  shown  by  the  articles,  (but  not 
that  said  contract  constituted  a  partnership  between  the 
par^ies,)lhe  conducting  of  the  joint  business  under  said 
Contract  up  to  the  filing  of  the  bill,  the  withdrawal  of 
James,  the  statement  of  the  accounts  by  the  auditing 
committee,  the  settlement  of  the  balance  found  due  from 


164  SUPREME  COURT      - 

— _ . — ___ , _ —     '• ' 

Meaher.v.  Cox,  Brainard  &  Co. 

the  defendants  on  the  1st  July,  1859,  their  refusal  to  pay 
the  balances  afterwards  found  due  from  them,  and  their 
refusal  to  answer  the  letters  and  proposition  of  the  com- 
plainants' solicitors.  They  insisted,  that  the  accounts 
stated  by  the  auditing  committee  were  only  designed  to 
furnish  the  parties  with  information  as  to  the  condition 
of  the  business,  and  included  cash  and  uncollected  debts; 
that,  under  the  twelfth  article  of  the  contract,  they 
were  only  bound  to  assume  as  cash  the  uncollected  debts 
at  the  end  of  each  year,  and  not  at  the  expiration  of  each 
month  ;  and  that  "to  require  from  either  party  monthly 
payments,  including  outstanding  delfts,  would  not  only 
impose  a  hardship  on  the  party  paying,  but  would  mate- 
rially interfere  with  the  success  of  the  business  itself." 
They  alleged,  that  the  complainants  had  not  carried  out 
the  contract  in  good  faith,  and  had  violated  its  stipula- 
tions in  several  specified  particulars;  and  justified  their 
own  refusal  to  reply  to  the  communications  of  the  com- 
plainants' solicitors,  on  the  ground  that  the  articles  pro- 
vided a  mode  of  adjusting  all  controversies,  and  the  com- 
plainants  had  not  proposed  to  settle  the  matters  in  dis- 
pute in  that  mode.  They  also  demurred  to  the  bill,  for 
want  of  equity,  and  for  want  of  necessary  parties. 

The  complainants  having  submitted  a  motion,  on  bill 
and  answer,  for  a  decretal  order,  declaring  a  dissolution 
of  the  partnership,  and  ordering  a  statement  of  the  ac- 
counts by  thejnaster,  the  chancellor  rendered  the  iollow- 
ing  decree : 

Saffold,  Ch. — "It  is  suggested  by  the  defendants,  that 
the  contract  between  the  parties  does  not  establish  a 
partnership  inter  sesc.  In  Smith's  Executor  v»  Garth, 
(32  Ala.  368,)  it  is  said:  'To  constitute  a  partnership 
inter  sese,  there  must  be  a  mutuality  of  risks — an  interest 
both  in  the  profits  and  losses.  These  risks  or  interests 
are  not  required  to  be  equal;  nor  is  it  important  that 
they  shall  agree  in  kind.  The  investment  may  be  tme- 
qual,  and  the  parties  may  agree  to  divide  the  profits  une- 
qually; yet,  if  it   be  one  of  the  terms  of  the   contract 


OF  ALABAMA.  165 


Meaher  v.  Cox,  3rainard  &  Co. 


that  each  shall  share  in  the  risks  and  losses,  and  also  in 
the  profits  to  be  realized,  this  constitutes  them  partners 
as  between  themselves.' — See  authorities  cited.  This 
settles  the  law  of  this  case  upou  the  point  raised.  The 
articles  express  the  agreement  to  be,  'to  divide  between 
them,  in  certain  proportions;  the  net  proceeds  of  their 
freight,  passage-money,  and  other  earnings,  as  they  may 
accrue,  after  satisfying  their  running  expenses.'  The 
fourth  and  fifth  articles  provide  for  a  separate  ownership 
of  the  boats  by  the  parties  respectively,  and  for  having 
them  constantly  ready  and  equipped,  and  against  any  de- 
lay for  repairs,  &c. ;  'and  if  the  need  of  repairs,  in  any 
case,  shall  cause  the  loss  of  a  trip  of  any  boat,  then  the 
expenses  of  such  boat,  during  the  time  lost,  shall  be  at 
the  charge  of  the  owners.'  The  seventh  article  provides 
for  a  division  of  the  total  amount  of  the  proceeds  and 
earnings,  in  certain  proportions;  'that  nothing  shall  be 
charged,  but  the  actual  expenses  of  the  running  depart? 
ment  of  the  said  boats,  exclusive  of  the  repairs,  value  of 
the  use  of  the  boats,  insurance,  taxes,  &c. ;  the  amount 
to  be  divided  to  be  stated  by  computing  the  earnings, 
and  deducting  therefrom  the  wages,  provisions,  wood, 
supplies,  and  all  daily  expenditures  properly  belonging 
to  the  running  of  the  boats  for  the  time  being.'  The 
tenth  article  provides,  that  the  salaries  of  the  agents 
shall  be  paid  out  of  the  gross  earnings  of  the  boats,  as  a 
charge  against  the  joint  fund;  and  the  sixteenth  article 
provides,  'that  the  compensation  of  the  examining  and 
auditing  committee,  and  also  all  losses  paid  for  injuries 
and  damage  on  cotton  shipped  from  the  river  above 
through  to  New  Orleans,  shall  be  charged  to  the  general 
expense  account,  so  that  the  charges  shall  be  borne  by 
the  respective  parties  according  to  their  respective  in- 
terests.' It  is  to  be  gathered  from  these  stipulations, 
that  there  is  a  mutuality  of  risks — an  interest  in  the 
losses,  to  the  extent  of  satisfying  the  running  expenses 
of  the  boats,  such  as  wages,  provisions,  wood,  supplies; 
and  all  daily  expenditures ;  the  salaries  of  the  agents  and 
examining  and  auditing  committee,  and  losses  on  cotton 


166     SUPREME  COURT ____ 

Mealier  v.  Cox,  Brainard  &  Co. 

shipped  through  to  New  Orleans.     Should  it  appear  that 
the  legitimate  expenses,  as  above  provided  for,  exceeded 
the  gross  earnings  of  one  or  more   of  the  boats,  and  re- 
sulted in  a  loss  to  such  boat,  the  loss  would  be  a  charge 
agait?st  the  common  fund;  and  so  the  parties  seemed  to' 
•consider  it  in  making  up  their  accounts.     Suppose  that, 
for  a  whole  year,  the  legitimate  expenses  of  the  running 
department  of  the  boats  of  one  of  the  parties  had  exceed- 
ed the  gross  earnings  of  said  boats,  without  culpable  neg- 
lect or  misconduct  on  their  part  causing  that  result,  and 
the  net  profits  of  the  boats  of  the  other  party  had  been 
considerable;  there  can  be  no  question,  that  these  profits 
would  have  been  subject  to  division  between  the  parties, 
in  the  proportions  stipulated  for;  nay  more,  they  would 
have   been  subject  to  a  reduction  first,  to  the  extent  of 
the  losses  of  the  unfortunate  boats,  and  the  balance  sub- 
ject to  division;  and  upon  the  same  principle,  if  all  the 
boats  of  both  parties  had  sustained  losses,  by  the  legiti- 
mate expenditures  exceeding  the  gross  income,  the  losses 
would  have  to  be  borne  proportionately.     It  is  true,  that 
the  sixth   article  stipulates  against  a  mutuality  of  risks, 
as  to  a  certain  class  of  losses,  injuries,  and  damages;  and 
it   was  entirely  competent   for  the  parties,  as  between 
themselves,  to  provide  against  such   mutuality  of  losses, 
and  declare  them  not  to  be  legitimate  charges  against  the 
common  fund.      But,  unless  these  stipulations   covered 
the  whole  ground  of  mutuality  of  risks,  the  principle  of 
the  case  above  cited  establishes  a  partnership  inter  scse. 

"The  next  question  to  be  considered  is,  whether  the 
court  will  decree  a  dissolution  of  the  partnership,  on  the 
case  made  by  the  bill  and  answer.  In  determining  this 
question,  it  is  proper  for  the  court  to  look  to  the  duties 
and  obligations  implied  in  the  partnership  contract,  as 
well  as  to  the  express  terms  of  the  contract,  and  to  the 
results  of  a  dissolution  to  the  partners.  It  is  considered, 
that  the  defendants  have  not  committed  such  acts  of 
misconduct,  or  been  guilty  of  such  violation  of  the  terms 
of  the  contract,  as  would  authorize  the  court  to  decree  a 
dissolution  for  that  cause;  nor  does  it  appear,  from  the 


Of  ALABAMA.  167 


Meaher  v.  Cox,  Brainard  &  Co. 


bill' and  answer/that  they  have  willfully  violated  the  con- 
tract in  any  regard;  and  no  acts  of  the  complainants  are 
stated  in  the  answer,  which  would  induce  the  court,  ex 
mero  motu,  to  dissolve  the  partnership,  especially  when 
such  dissolution  is  not  assented  to  by  the  defendants. 
This  is  not  a  case,  however,  wherein  it  appears  that  any 
material  damage  is  to  result  to  the  interests  of  cither 
party,  or  a  join t  partnership  property  may  be  sacrificed 
by  a  sale  on  dissolution  ;  and  it'is  to  be  considered,  that 
the  partnership  contract  imposes  upon  both  parties  mu- 
tual good  will  and  confidence,  without  which  it  would  be 
impracticable  to  carry  out  the  agreement  beneficially  to 
both  parties.  Moreover,  if  a  dissolution  were  not  de- 
creed, violations  of  the  contract,  and  violent  and  lasting 
dissensions,  would  probably  result  from  a  continuance  of 
the  partnership,  engendering  litigation  and  a  final  neces- 
sity for  a  dissolution.  The  court  is  of  opinion,  that  the 
state  of  feeling  between  the  parties  at  present  warrants 
this  apprehension,  and  that  a  dissolution  should  be  de- 
creed." 

The  chancellor  accordingly  decreed  a  dissolution  of  the 
partnership,  and   referred  the  matters  ot  account  to  the 

master;  and  his  decree  is  now  assigned  as  error. 

♦ 
R.  II.  Smith,  for  the  appellants.— 1.  The  contract  be- 
tween  the  parties  did  not  create  a  partnership.  There  is 
no  common  property,  and  no  joint  control;  no  combina- 
tion of  property,  labor  and  skill,  for  the  common  profit; 
no  personal  responsibility  for  the  debts  and  engagements 
of  each  other,  and  no  power  to  bind  each  other  by  con- 
tracts; the  property  of  each  is  at  his  own  risk,  and  sub- 
ject only  to  his  debts;  and,  on  dissolution,  there  could  be 
no  lien  for  partnership  debts.—  L  Parsons  on  Contracts, 
124;  3  Kent's  Com.  (lasted.)  20;  Pattison  v.  Blanchard,  . 

len,  lc6;  Smith  v.  Wright,  6  San  ford,  1  I  Igcs 

v-  1>:I'       &  Co.,  6    Ala.  217.     The   bill  shows   that  the 

members  con  the  firm  of  Cox,  Brainard  &.  Co.  have 

changed,  without  thedefendanta'  consent,  and  without 

iltation  with  them;  which  conld  not  bedoiu   in  i 

of  a  partnership.— Story  on  Partnership, 


108 SUPREME  COURT   • 

Meaher  v.  Cox,  Brainard  &  Co. 

2.  Whether  considered  as  a  bill  for  the  dissolution  of  a 
partnership,  or  for  the  rescission  of  a  contract,  the  com- 
plainants are  not  entitled  to  any  relief,  on  the  case  made 
by  the  bill  and  answer.  As  the  hearing  was  on  bill  and 
answer,  the  answer  must  be  taken  as  true  in  all  its  parts. 
4  Ala.  464.  The  seventh  and  twelfth  articles,  construed 
together,  show  that,  while  the  accounts  are  to  be  adjusted 
monthly,  and  the  cash  balances  to  be  paid  over,  the  un- 
collected debts  are  to  be  assumed  and  accounted  for  only 
at  the  expiration  of  each  year.  If  the  complainants' 
construction'  be  correct,  the  bill  itself  shows  that,  in 
practice,  the  parties  have  adopted  a  different  construction ; 
and  the  court  will  give  effect  to  such  practical  construc- 
tion.— Boyd  v.  Mynatt,  4  Ala.  79;  Smith  v.  J  eyes, 
4  Beavan,  503.  Complainants  assert  a  simple  legal  de- 
mand, recoverable  at  law;  and  as  the  balances  between 
the  parties  are  continually  shifting,  they  should  be  left  to 
their  remedies  at  law. — Loscombe  v.  Russell,  4  Simon,  8. 
A  court  of  equity  will  not  undertake  to  adjust  the  squab- 
bles of  partners. — Wray  v.  Hutchinson,  2  My.  &  K.  235; 
Heun  v.  Walsh,  2  Edwards'  Ch.  129.  Particularly  ought 
this  iuio  /  be  enforced,  where  the  articles  provide  a 
mode  of  adjustinajdifferences,  and  the  complainants 
do  not  show  that  they  have  sought  that  mode  of  re- 
dress.—Smith  v.  Mules,  10  Eng.  L.  &  Eq.  103.  The  com- 
plainants show  no  right  in  themselves  to  maintain  a  bill 
in  behalf  of  Cox,  Brainard  &  Co.  — 1  Russell,  441.  No 
cause  for  a  dissolution  is  shown,  in  any  view  of  the  case. 
Story  on  Partnership,  §§  287-  89. 

Geo.  .N.  Stewart,  and  E.  S.  Dargan,  contra.— I.  The 
contract  contains  all  the  elements  of  a  partnership,  not 
only  as  to  third  persons,  but  as  between  the  parties. 
Participation  in  the  profits  and  losses,  without  regard  to 
the  mode  of  dividing  either,  constitutes  a  partnership. 
Smith's  Executor  v.  Garth,  32  Ala.  368;  Bostwick  v. 
Champion,  11  Wendell,  571;  S.  C,  18  Wendell,  175. 

2.  Whether  the  contract  be  a  partnership  inter  sew,  or  only 
as  to  third  persons,  ample  cause  for  dissolution  is  shown. 


OF  ALABAMA,  169 


Mealier  v.  Cox,  Brainard  &  Co. 


Waters  v.  Taylor,  2  VeSey  &  B.  303 ;  Loscombe  v.  Russell, 
4  Simon,  II  ;  Gow  on  Partnership,  124-6,  246-7,  111-6; 
Collyer  on  Partnership,  §§  291-97,  194-6,  236;  Story  on 
Partnership,  413-14,  42*3,  290;  3  Kbit's  Com.  60. 

R.  W.  WALKER,  J.— [March  2,  1861.]— Whatever 
may  be  the  proper  construction  of  the  12th  clause  of  the 
articles,  when  taken  in  connection  with  the  7th,  it  is  ad- 
mitted on  both  sides,  that,  by  the  agreement,  the  accounts 
are  to  be  adjusted  monthly,  and  the  cash  balances  paid 
over.  When  the  defendants  were  called  on  to  pay  the 
balances,  as  stated  by  the  auditors,  they  did  not  object  to 
the  accounts,  on  the  ground  that  they  were  made  up  in 
part  of  cash,  and  in  part  of  uncollected  debts,  without 
distinguishing  the  cash  from  the  debts;  nor  did  they  theu, 
nor  do  they  by  their  answer,  express  a  willingness  to  pay 
the  cash  balances,  according  to  the  stipulation  in  the  ar- 
ticles. On  the  contrary,  the  answer  must  be  understood 
as  insisting,  that  the  business  of  the  partnership  cannot 
be  successfully  conducted,  if  the  7th  clause  of  the  articles 
is  carried  out  as  it  is  written;  and  the  unwillingness  of 
the  defendants  to  abide  by  and  execute  that  term  of  the 
agreement,  is  apparent.  If,  in  adjusting  the  accounts, 
and  ascertaining  the  balauces  to  be  paid  over,  the  audit- 
ors did  not  proceed  in  the  manner  directed  by  the  articles, 
this  fact  should  have  been  pointed  out,  and  the  proper 
correction  asked  by  the  defendants,  when  called  on  for 
payment  by  the  complainants.  But,  instead  of  this,  they 
made  no  reply  to  the  communications  upon  the  subject 
sent  to  them  by  the  complainants;  and  when  applied  to 
with  a  proposition  from  the  complainants  to  terminate 
the  partnership,  they  refused  to  say  whether  they  would 
accede  to  it  or  not. 

Looking  at  the  whole  case,  it  pretty  plainly  appears — 
that  the  defendants  do  not  intend  to  carry  out  one 
of  the  terms  of  the  agreement,  but  insist  that,  in  order 
to  carry  on  the  partnership  business,  this  feature  of  the 
agreement  must  be  either  disregarded  op  changed ; 
that  they  have  refused,  in  the  instauccs  specified,  to  cor- 
12 


170  SUPREME  COURT  

Mother  v.  Cox,  Brainard  &  Co. 

respond  with  the  complainants,  •  on  matters  connected 
with  their  business;  and,  tidrd,  that  the  state  of  feeling 
between  the  parties  justifies  the  apprehension,  that  the 
business  cannot  be  continued  to  the  mutual  advantage  of 
the  partners.  While,  therefore,  it  may  be  true,  as  said  by 
the  chancellor,  that  the  defendants  have  not  committed 
such  acts  of  misconduct,  or  been  guilty  of  such  willful 
violation  of  the  terms  of  the  contract,  as  would  authorize 
the  court  to  decree  a  dissolution  for  that  cause;  yet  we 
think  that  the  combination  of  circumstances  above  enu- 
merated does  justify  a  dissolution,  in  this  particular  case; 
which  is  not  one  in  which  there  is  any  joint  property, 
which  might  be  sacrificed  by  a  sale;  or  where  it  is  proba- 
1 1 a t  a  dissolution  would  inflict  material  injury  on 
cither  party;  and  in  which,  moreover,' it  is  obvious,  from 
the  very  nature  of  the  andertakiug,  that  good  will,  confi- 
dence, and  concert  of  effort,  (important  elements  of  sue- 
in  cv^ry  partnership,)  are  indispensable  to  the  profit- 
able management  of  the  business. — See  1  Story's  Equity, 
§673;  Collyer  on  Partn.  §§  297,  291,  119,  and  notes; 
Story  on  Tartu.  §$  27-".,  289,  290,  and  notes;  Waters  v. 
Taylor.  2  Yes.  &  ]*>.  299;  Baring  v.  Dix,  1  Cox,  212; 
Bishop  v.  Rrecklcs,  1  Horn  Ch.  534. 

[2  ]  The  clause  providing  lor  the  submission  to  arbitra- 
tion of  all  matters  of  dispute,  has  nothing  to  do  with  the 
question,  whether  equity  should  decree  a  dissolution.  No 
•  agreement  to  refer  a  controversy  to  arbitration,  can 
oust  the  proper  courts  of  their  jurisdiction. — Collyer  on 
Partn.  '  250-51,  253,  and  notes;  Stone  v.  Dennis,  8  J 'or. 
28t;    1   Story's  Eq.  §  670 

[:•).]  As  partnerships   arc    founded   in    personal    confi- 
dence an  man,  it  is  a  settled  principle,  that 
no  partner,  and  no  majority  of  partners,  can  introcmce  a 
new  member,  without  the  consent  of  the  others.     But  in 
this  case,  after  the  complainants  succeeded  to  the  inter- 
of   the    persons    originally  composing  the  firm   of 
Cox,    Brainard, &   Co.,   the   defendants   recognized   and 
ted  them  as  partners,  and  continued  the  business,  in 
•onjunction   with   them,   under  the   original   agreement. 


OF  ALABAMA. 171 

Moseleys  Adm'r  v.  Mastin. 

This  was  quite  sufficient  to  make  the  complainants  part- 
ners; and  the  original  articles  remained  operative,  as  be- 
tween them  and  the  defendants.  —See  Rowland  v.  Booyer, 
10  Ala,  600;  Cowlcs  v.  Garrett,  30  Ala.  34& 

[4."]  We  do  not  deem  it  necessary  to  add  anything  to 
what  is  said  by  the  chancellor,  in  support  of  the  propo- 
sition, that  the  agreement  constituted  a  partnership  inter 
sese.  We  cite,  however,  as  sustaining  that  view,  Cham- 
pion v.  Bostwick,  18  Wend.  175;  and  Pattison  v.  Blau- 
chard,  1  Sold.  186. 

With  these  explanations  and  additions,  we  approve  of 
and  adopt  the  opinion  of  the  chancellor. 

Decree  affirmed. 


MOSELEY'S  ADM'R  vs.  MASTIN. 
[detinue  foh  slaves.] 

' .  Validity  of  grant  of  administration. — A  grant  of  letters  of  adn 
tration  in  chief,  when  there  has  been  in  fact  a  previous  adminis- 
tration, which  had  terminated  by  the  death  of  the.  administrator, 
(these  facts  not  appearing  in  the  second  grant,)  is  valid  as  a  grant 
of  administration  dc  bonis  non,  and  void  only  as  to  the  excess  of 
authority  which  it  purports  to  confer. 

'  notice  of  meaning  of  words. — The  appellate  court  will  take 
judicial  notice  of  the  fact,  that  the  word  "adm'r,"  following  the 
plaintiff's   name  in  the  complaint,  is  an  Abbreviation  for  the  word 

trator. 

3.  Admissibility  of  parol  evidence  in  aid  of  record. — A  grant  of  letters 

aion  on  the  estate  of  E.  M.  deceased,  when 
that  there  were  to  s  (father  and  son)  of  that  ni 

leal  '  ite  in  the  county  to  be  administered,  may 

by  parol  to  refer  i  tho  Ron. 

4.  /'.  n  crro) . — If  evidence  is  erroi 
eluded  by  the  primary  oonrt,  on  a  single   specified  ground, 

urt  will   ]  njury  from  the  error,  alt hfu 

appears  that  the  evidence wai 


SUPREME  COURT 

Moseley 'a  Adm'r  v.  Mastin. 


md,  which,  if  the  objection  had  there  b<  en  raised,  might  have- 
•.  i.ittd  by  the  introduction  of  other  evidence. 

Appbal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  lion.  S.  D.  Hale. 

Tuts  action  was.brought  by  Joseph  P.  Hopper,  as  the 
administrator  of  Klislia  Moseley,  junior,  deceased,  against 
Pester  B.  Mastin.  In  the  summons,  the  plaintiff  was 
described  as  the  administrator  of  Elisha  Moseley,  jr.,  de- 
ceased; in  the  marginal  statement  of  the  parties'  names 
in   the  complaint,   "as  adm'r  of  Elisha   Mosely,  jr.,  de- 

•  d  -."  and  in  the  body  of  the  complaint,  "as  adm'r  of 
all  the  goods  an dj chattels,  rights  and  credits  of  Elisha 
M  selcy,  jr.,  deceased,  which  were  left  nnadministered  by 
the  administrator  in  chief."  The  slaves  in  controversy 
belonged  to  Elisha  Moseley,  senior,  who  was  the  father 
of  plaintiff's  intestate,  and  were  given  1 » v  him  to  his  said 
son,  on  the  marriage  oi  the  latter,  in  ]v".<>,  or  lv:!T.  The 
■on  carried  the  slaves  home  with  him  when  he  commenced 
housekeeping,  and  kept  them  until  his  death,  which  oc- 
curred about  twelve  months  afterwards.  On  the  death 
of  the  Bon,  the  father  carried  his  wile  and  the  slaves  to 

iwn  house,  declaring  his  intention  to  keep  the  slaves 
for  the  child  with  which   his  daughter-in-law  was  then 

nant,  Letters  of  administration  on  the  estate  of  the 
son  were  granted  to  the  father. on  the  2d  March,  1838, 
bir  he  did  not  include  the  .slaves  in  his  inventory  of  the 
estate;  and  in  January,  1540,  on  settlement  of  his  ac- 
counts a  decree  was  rendered  against  him,  in  favor  of  the 
in  t  -  '!••  ■  I  and  child,  for  the  balance  of  money  as- 
certained to  be  in  his  hand-,  but  he  was  not  discharged 
from  the  trust.  Tin'  father  died  in  L843 ;  and  the  slaves 
afterwards  -old  by  bis  administrator,  under  an  order 

Mft,  and  were  purchased  at  the  sale  by  the  defendant. 
The  father  and  80  n  both  lived  and  died  in  Montgomery 
county,  Alabama,  and  letters  of  administration  were  there 
grained  on  their  respective  estati 

ATter   having   proved  the  facts  above  stated,  the  plain- 


OF  ALABAMA.  173 


Moseley's  Adm'r  v.  Mastin. 


tifF  offered  to  read  in  evidence  his  letters  of  administra- 
tion, vvhieb  were  granted  by  the  probate  court  of  Mont- 
gomery, on  the  Cth  August,  1856,  and  which  were  in  the 
following  words:  "This  day  came  Joseph  D.  Hopperj  and 
applied  for  letters  of  administration  on  the  estate  of 
Elisha  Moseleyi  deceased  ;  and  it  appearing  to  the  court 
that  the  deceased  has  been  dead  more  than  forty  days, 
and  that  he  died  in  Montgomery  county,  Alabama;  and 
the  said  Joseph  D.  Hopper  having  entered  into  bond,  in 
the  sum  of  six  thousand  dollars,  with  J.  F.  Jackson  and 
Thomas  II.  Watts  as  his  sureties,  and  taken  the  oath  of 
office,  it  is  ordered,  that  letters  of  administration  issue 
to  Joseph  D.  Hopper  on   the  estate  of  Elisha  Moseley, 

I  ;    and  ordered,   that    said    administrator   make 
'return  of  an  inventory  to  the  court  in  sixty  days."     "The 
plaintiff  stated,  that  he  expected  to  prove,  in  connection 
with  said  order"  that  iffe  had  duly  qualified  as  such  admin- 
istrator,  pursuant  to  said  order,   and  was  acting  as  such 
under  it  at  the  commencement  of  this  suit.     The  de- 
fendant objected  to  the  reading  of  said  order  in  evidence, 
on  the  ground  that,  on  the  facts  hereinabove  stated,  said 
order  was  null  and  void  ;  and  on  the  further  ground,  that 
there  v^as  a  variance   between   the   complaint   and    said 
evidence,  because  the  order  showed  that,  he  was  appointed 
administrator  generally,   while  ho  sued  as  administrator 
The  court  sustained    the   objections,  and 
excluded  the  evidence;  to  whieh  the  plaintiff  excepted, 
and  took  a  nonsuit;  and  1*3  now  assigns  this  ruling  of  the 

error. 

W.A  <.i:  k  Jackson,  for  appellant.— The  grant  of 

i  i  at  ration  to  the  plaintiff  was  not  void.— Ikelhei 

Adm'r,  3-2  Ala.  676;  Savage  v,   Bei  1  am, 
IT  Ala.  119;  Herbert  v.  Hanrick,  16  A.la.  58]  ; 

v.  Knight,  11  Ala.  461.     The  entire  record  of  the  a.lmin- 

D    together,  shows   that   the 
grant  could  not  I  administration  in  chief,  but  could 

only  an   administration  d, 

such  it  rausl  I        ■  ,].      If,.. 


174  SUPREME  COURT  

Moseley's  Adm'r  v.  Mastin. 

- — i — — — — . 

the  plaintiff  was  properly  described  as  administrator  de 
bonis  non,  and  there  was  no  variance. 

Goldthwaite,  Rice  &  Semple,  contra. — The  rights  and  • 
liabilities  of  an  administrator  in  chief  are  different  from 
those  of  an  administrator  de  bonis  non. — Enicks  v.  Powell, 
2  Strobh.  Eq.  196.  The  title  of  an  administrator  in  chief 
relates  back  to  the  death  of  the  intestate,  while  the  title 
of  an  administrator  de  bonis  non  reaches  only  to  the  assets 
which  were  not  administered  by  his  predecessor;  and  de- 
fenses may  sometimes  he  made  against  the  one,  which 
would  not  avail  against  the  other. — Judge,  &c.  v.  Price, 
6  Ala.  36;  Fambro  v.  Gantt,  12  Ala.  298.  The  difference 
between  these  two  kinds  of  administration  constitutes  a 
fatal  variance  between  the  allegations  and  proof  in  thi3  A 
case.— Scott  v.  Dansby,  12  Ala.  714;  Flake  &  Freeman 
v.Day,  22  Ala.  132>;  Agee  v.  Williams,  27  Ala.  044; 
Dill  v.  Rather,  30  Ala.  57. 

A.  J.  WALKER,  0.  J.— [Feb.  12,  1361.]— The  grant 
of  administration  tO%the  appellant  was  not  void,  on  ac- 
count of  the  omission  of. a  recital  of  the  facts  upon  which 
the  jurisdiction  of  the  cou»t  was  predicated.— Ikelheimer 
v.  Chapman,  32  Ala.  676;  Savage  v.  Benham,  17  Ala.  119. 
As  there  had  been  a  previous  administration  upon  the 
estate,  which  was  terminated  by  the  adminisl  rator's  death, 
there  could  not  be  an  administration  in  chief,  and  it  was 
Improper  for  the  court  tofoppoint  an  administrator  gene- 
rally. The  appointment  should  have  been  in  terms 
restricted  to  the  character  of  an  administrator  de  bonis 
von.  But  we  do  not  think  the  appointment  ought  there- 
fore to  have  been  held  void  in  toto.  The  authority  of  an 
administrator  de  bonis  non  is  precisely  that  of  an  adminis- 
trator in  chief,  lessened  in  consequence  of  the  previous 
administration;  and  the  errOrofthe  court,  in  omitting  to 
properly  qualify  the  grant  of  administration,  had  only  . 
the  effect  of  conveying  an  e  power;  and  the  grant 

of  administration  should  be  held  void  only  for  the  excess 
of  authority.  A  consideration  of  the  appointment,  in 
connection  with  the  previous  administration,  shown    by 


OF  ALABAMA.  175 


Moseley's  Adm't  v.  Mastin. 


the  records  of  the  court,  qualities  it,  and  gives  it  the 
character  of  an  administration  de  bonis  non.  The  plaintiff 
was,  therefore,  properly  described  as  administrator  de 
non;  and  the  apparent  variance  between,  the  char- 
acter in  which  he  sues,  and  that  bestowed  by  the  grant  of 
administration,  is  harmonized  and  reconciled  by  the  facts, 
that  flier.'  had  been  a  previous  administration,  which  was 
terminated  by  death. — See  Steene  v.  Bennet  &  Sergeant, 
24  Verm.  303;  and  Grand  v.  Herrcra,  15  Texas,  533, 
which  seem  to  be  precisely  in  point,  sustaining  the  fore- 
going vi 

Judgment  reversed,  and  cause  remanded. 

Note  by  Reporter, — The  appellee's  counsel  afterwards 
submitted  a  petition  tor  a  rehearing,  in  which  they  Urged 
an  affirmance  of  the  judgment  of  the  circuit  court,  on 
the  following  ground^: 

1.  As  the  plaintiff  never  had  possession  of  the  slaves, 
he  cannot  recover  in  his  individual  character. — George  v. 
English,  30  Ala.  583.  Looking  to  the  body  of  the  com- 
plaint, the  only  words  descriptive  of  his  representative 
character  are,  "as  adm'r  of  all  the  goods  and  chattels," 
Jtc,  "  left  uuadministered  by  the  administrator  in  chief;'' 
and  since  nothing  is  averred  to  excuse,  the  profert  and 
proof  of  his  representative  character,  (Worthington  v. 
McKoberts,  7  Ala.  814,)  and  the  defendant  is  not  estopped 
from  denying  it,  (Harbin  v.  L^yi,  0  Ala.  399,)  this  court 
will  not  presume,  against  the  judgment  of  the  circuit 
court,  that  these  words  indicate  a  suit  by  him  as  admin- 
istrator.—Chapman  v.  Spenco,  22  Ala.  588.  No  intend- 
ments arc  to  be  made  in  favor  of  the  pleader,  and  against 

if  the  judgment. — King  v.  Griffin,  0  Ala. 
.    Agee  v.  Williams,  27  Ala.  G44 ;  8.  C,  30  Ala.  I 
Geo!  80  Ala.  5 

2.  But,  if  the  action  is  brought  by  the  plaintiff  in  his 
rep  rose  n  tat  ire  character,  the  order  of  the  probate  court 
was  properly  excluded.  A  grant  of  letters  of  adminis- 
tration on  the  estate  of  "  Elijah  S  I,"  with- 
out any  other  addition  or  description  of  the  person,  when 


176  SUPREME  COURT 

Moseley's  Adm'r  v.  Mastin. 

it  is  shown  that  there  were  two  deceased  persons,  father 
and  son,  each  bearing  that  name,  and  each  leaving  an  es- 
tate in  the  county,  must  be  construed  and  held  as  a  grant 
of  administration  on  the  estate  of  the  father. — Wilson  v. 
Stubs,  Hobart,  830 ;  Lepiot  v.  Browne,  1  Salkeld,  7,  pi.  16 ; 
Sweeting  y.  Fowler,  1  Starkie,  106;  Boyden  v.  Hastings, 
17  Pick.  200.  The  construction  of  the  order  of  the  pro- 
bate court  was  a  question  for  the  determination  of  the 
court,  aud  with  which  the  jury  had  nothing  to  do.*-Wy- 
att  v.  Steele,  26  Ala.  639;  Bishop  v.  Hampton,  15  Ala. 
761;  S.  C,  19  Ala.  792.  Parol  evidence  was  not  admis- 
sible to  change  the  legal  effect  of  the  grant,  by  showing 
that  it  was  intended  to  refer  to  the  estate  or*  the  son. — 
Hudson  v.  Gayle,  10  Ala.  116  ;  Flournoy  v.  Minis,  17  Ala. 
36;  Ware  v.  Roberson,  18  Ala.  105.  No  such  evidence 
was  offered  by  plaintiff,  even  if  it  were  admissible;  and 
this  court  will  not  presume,  for  the  purpose  of  reversing 
the  judgment,  that  the  plaintiff  could  have  made  the  ne- 
cessary proof. 

In  response  to  this  application,  the  following  opinion 
was,  on  u  .subsequent  day  of  the  term,  deliw-- 

A.  J.  WALKER,  C.  J. — As  to  the  first  point  made  in 
the  petition  for  a  rehearing,  we  have  only  to  say,  that 
the  court  must  judicially  take  notice  of  such  abbreviations 
as  "adm'r"  or  acknowledge  itself  incompetent  to  under- 
stand the  commonest  writings. 

After  a  careful  consideration  of  the  second  point  made, 
and  the  authorities  adduced  in  support  of  it,  we  cannot 
find  in  it  a  reason  for  changing  the  conclusion  which  we 
have  heretofore  announced.  The  authorities  cited  by 
the  counsel  show,  as  we  think,  most  clearly,  that  if  the 
administration  would,  under  the  circumstances  stated,  be 
deemed  'prima  facie  an  administration  upon  the  estate  of 
the  senior  Moselcy,  it  may  nevertheless  be  shown  to  have 
been  in  fact  an  administration  upon  the  estate  of  the  ju- 
nior Moselcy. 

Two  specific  objections  were  made  to  the  plaintiff's 
testimony  in  the  court  below,  one  of  which  implied  an 


OF  ALABAMA.  177 


Moseley's  Adm'r  v.  Mastin. 


admission  that  the  administration  was  upon  the  estate  of 
the  junior  Moseley;  and  the  bill  of  exceptions  states,  that 
the  court  sustained  the  objections,  and  excluded  the  evi- 
dence. The  objection  to  the  evidence  stated  in  the  sec- 
oud  point  of  the  petition  for  a  rehearing,  was  not  one  of 
the  objections  made  in  the  court  below,  but  is  now  brought 
forward  for  the  first  time.  If  that  objection  had  not  been 
excluded  from  the  attention  of  the  plaintiff's  counsel, 
and  of  the  court,  by  the  other  specific  objections  which 
were  made,  it  might  have  been  obviated.  The  court  erred 
in  sustaining  the  specific  objections  which  were  made; 
and  we  cannot  affirm  that  it  was  error  without  injury, 
because  there  was  another  objection  which  might  have 
been  made,  and  which,  if  made,  might  have  been  obvia- 
ted. It  is  our  duty,  therefore,  to  reverse,  notwithstand- 
ing there  may  have  been  another  objection,  which  might 
have  been  fatal  to  the  admissibility  of  the  evidence,  but 
which  was  of  such  a  nature  that,  if  it  had  been  made  in 
the  court  below,  it  was  capable  of  being  obviated. 

It  must  be  admitted,  that  the  exclusion  of  illegal  evi- 
dence, for  a  wrong  reason,  would  not  be  a  reversible 
error. — Jordan  v.  Owen,  27  Ala.  152.  But  it  would  be 
improper  for  the  court  to  assume  that  the  excluded  evi- 
dence was  illegal.  Although  it  may  have  been,  prima 
,  illegal,  yet,  in  connection  with  other  evidence,  it 
might  have  been  made  legal.  We  cannot  presume  that 
the  other  evidence  which  was  necessary,  in  connection 
with  that  excluded,  to  make  out  the  plaintiff's  right  to 
sue  in  the  capacity  of  administrator,  would  not  have 
been  offered,  when  both  the  motion  to  exclude,  and  the 
order  excluding,  were  expressly  put  upon  other  grounds 
than  tin;  want  of  such  evidence,  and  one  of  those  grounds 
implied  an  admission  that  the  evidence  was  not  obnox- 
ious to  the  objeeton  now  made. 

The  petition  for  a  rehearing  is  overruled. 


178  SUPREME  COURT 


Bank  of  Montgomery  v.  Planner's  Adm'r. 


BANK  OF  MONTGOMERY  vs.  PLANNETT'S  ADM. 

[action  fob  mosey  had  A.ND  RECBIVBD.] 

1.  Proof  of  account  by  entries  made  by  deceased  clerk. — Books  of  ac- 
count, kept  by  a  deceased  clerk,  and  all  other  entries  or  memo- 
randa mad''  in  the  course  of  business  or  duty,  by  one  who  would 
beat  the  time  a  competent  witness  to  the  fact  which  he  registers, 
aro  held  competent  evidence*  from  the  presumed  necessity  of 
the  case,;  hut  the  reason  of  the  rule  ceases,  and  the  rule  itself 
consequently  fails,  when  it  appears  that  there  is  other  and  better 
.evidence  of  the  same  tacts;  as  where  it  is  shown  to  be  the  cus- 
tom of  a  bank  to  payout  money  only  on  the  checks  of  its  deposit- 
ors. 

2.  Strj  m-claim. — A  claim  against   the  estate  of  a  deceased 

•  oi  is  barred,  unless  presented  to  the  personal  representative 
within  eighteen  months  after  its  accrual,  or  within  eighteen 
months  after  the  grant  of  letters  testamentary  or  of  administra- 
tion itwithstanding  the  Failure  of  the  personal 
representative  to  give  notice  to  creditors,  as  required  by  the 
statute. 
.">.  Ag  n,  question  af  I  vince  '/jury. — 
Where  the  fact  of  agency  is  controverted,  and  there  is  any  evi- 
dence tending  to  establish  it,  the  sufficiency  of  that  evidence  is  a 
question  for  the  jury,  under  appropriate  instructions  from  the 
court:  and  a  oharg  ing  that  the  evidence  is  not  sufficient 
to  pro\                                               us. 

Appeal  from  the  Circuit  Courted'  Montgomery. 
Tried  before  the  Hon.  John  Gill  Shorter. 

This  action  was  brought  by  the  administrator  of 
Stephen  Plannett,  deeeaeed,  to  recover  certain  moneys 
alleged   to   have  been    d  i   with   the  defendant  by 

said  Plannett  in  his  life-time;  and  was  commenced  on 
the  5th  i.lateh,  1857.  The  complaint  contained  a  count 
on  an  open  account,  and  another  on  a  6tated  accouut. 
The  defendant  pleaded,  in  short  by  consent,  the  general 
issue,  payment,  and  set-off;  and  to  the  plea  of  set-oil' the 
plaintiff  replies!  the  statute  of  non-claim.  "On  the  trial," 


OF  ALABAMA.  170 


Bank  of  Montgomery  v.  Plannett's  Adm'r. 

as  the  bill  of  exceptions'  states,  "the  plaintiff's  account 
.  against  the  defendant  was  established  by  entries  in  a  de- 
posit-book, ((fommonly  called  a  'pass-book,')  to  the  credit 
of  plaintiff's  intestate,  and  in  his  own  name,  made  by 
the  defendant's  teller.  To  support  the  pleas  of  payment 
and  set-off,  the  defendant  produced  its  book  of  original 
entries,  containing  items  of  account,  both  debit  and  credit, 
between  said  intestate  and  defendant;  and,  having  pro 
the  handwriting  of  the  officer  by  whom  said  eutries  were 
made,  and  bis  death,  and  that  he  kept  correct  accounts, 
ottered  to  read  said  entries  to  the  jury;  but,  it  having 
been  proved  to  be  the  custom  of  the  defendant  to  payout 
moneys  to  depositors  on  checks  drawn  by  them,  the  court 
required  the  production  of  the  cheeks,  and  refused  to  al- 
low said  book  of  original  entries  to  go  before  the  jury,  as 
sufficient  evidence,  without  the  checks;  to  which  the  de- 
fendant excepted." 

"The  defendant  introduced  oral    evidence  before   the 
jury,  tending  to  show  that,  in  1854  and   1855,  plaintiff's 
intestate  was  in  bad  health,  and   so  continued  up  to  the 
time  of  his  death  in  June,  1855;  that  said  intestate,  from 
the  1st  June,  to  the  1st  December,  1854,  was  absent  from 
this  State;  that  before  he  left,  during  his  absence,  and 
after  his  return,  up  to  within  a  short  period  of  his  death, 
he  was  the  proprietor  of  a  billiard-room   in  the  city  of 
iiery,   which  he    rented  from   one   Washington 
Tilley;  that  during  all    this  time,  on  account  of  his  bad 
health,  lie  was  unable  to  give   his   personal   attention   to 
his  business,  but  entrusted   it   to   the   management  and 
control  of  one  V.  D.  Carnot,  who  exercised  complete  con- 
trol over  it,  making  contracts   in   reference   thereto,  and 
barging  liabilities.     The  defendant  further  proved  the 
declarations  of  said  intestate,  after  bis   return  to  Mont- 
.  that  said  Carnot  was   his  agent;  and  these  dec- 
larations were  made  whilst  said  Carnot  was  still  attending 
to  said  billiard* room  basinets,  and   in    a    con> 
which  had  refei 

ired   t<>  have  been  made 
during  the  time  I  from  I 


180  SUPREME  COURT 


Bank  of  Montgomery  v.  Plannett's  Adm'r. 


and  whilst  said  Carnot  was  attending  to  his  billiard-room. 
The  defendant  read  in  evidence,  after  proving  the  signa- 
ture thereto,  two  notes  signed  by  said  intestate,  for  $150 
each,  dated  the  1st  October,  1852,  and  payable,  respect- 
ively, on  the  1st  August,  and  the  1st  November,  1854,  to 
Washington  Tilley  or  order;  "  (each  of  which  purported 
to  be  given  "for  one  quarter's  rent  of  billiard-room,"  and 
was  endorsed  in  blank  by  said  Tilley;)  "and,  in  connec- 
tion therewith,  two  checks  on  said  defendant, drawn  by  said 
Carnot,  and  signed,  'Stephen  Plannett,  by  V.  D.  Carnot,' 
bearing  date  respectively  on  the  days  of  the  maturity  of 
said  notes,  and  purporting  on  their  face  to  be  drawn  for 
the  purpose  of  paying  6aid  notes.  The  defendant  intro- 
duced in  evidence,  also,  a  number  of  other  checks,  drawn 
on  said  defendant,  for  various  sums  of  money,  bearing 
various  dotes  between  the  1st  October,  1851,  and  the  1st 
June,  1855,  all  signed  like  the  two  above  mentioned. 
The  handwriting  of  said  Carnot  to  each  of  said  checks 
was  proved;  but  there  was  no  proof  that  any  of  them 
were  drawn  on  account  of  the  billiard-room.  iSTo  other 
evidence  on  the  subject  of  said  Carnot's  agency,  or  his 
authority  to  draw  said  checks*,  than  as  above  recited,  was 
offered  by  either  party.  There  was  no  evidence  to  show 
that  said  intestate,  after  his  return  to  Montgomery  in 
December,  1854,  had  ever  notified  defendant  that  said 
Carnot  was  not  his  agent;  nor  any  evidence  to  show  that 
he  had  any  knowledge  of  cheeks  drawn  on  his  funds  in 
bank  by  said  Carnot.  Letters  of  administration  on  said 
intestate's  estate  were  grunted  to  plaintiff  in  July,  1855; 
but  there  was  no-  proof  of  any  notice  to  creditors,  by 
publication  in  any  newspaper;  nor  was  there  any  proof 
that  said  notes  had  been  presented  to  said  administrator 
within  eighteen  months  alter  the  grant  of  his  letters;  and 
as  to  these  notes,  pleaded  as  a  set-oft  by  the  defendant, 
the  plaintiff  replied  the  statute  of  non-claim.  The  court 
charged  the  jury — 1st,  that  the  evidence  was  not  sufficient 
to  show  that  said  Carnot,  had  authority  to  draw  said 
checks,  or  any  of  them,  in  behalf  of  the  plaintiff's  in- 
testate;   and,  2d,  that  each  of  the  notes  offered  in   evi- 


«>'. 


OF  ALABAMA.  181 


Bank  of  Montgomery  v.  Plannett's  Aclm'r. 
dence  under  the  plea  of  set-oft*  was  barred  by  the  statute 
of  non-claim;  to  which  charges  the  defendant  excepted." 
The  rulings  of  the  court  on    the  evideuce,  and   the 
charges  to  the  jury,  are  now  assigned  as  error. 

Watts.  Judge  &  Jackson,  for  appellant. — 1.  The  en- 
tries made  by  the  deceased  clerk  were  competent  evi- 
dence to  prove  the  account.— Clemens  v.  Patton,  Donegan 
&  Co.,  9  Porter,  289  ;  1  Greenl.  Ev.  §§  115-17,  120,  15.1; 
Batre  v.  Simpson,  4  Ala.  305;  Everly  v.  Bradford,  4  Ala- 
373. 

2.  The  first  charge  invaded  the  province  of  the  jury. 
Agency  is  a  question  of  fact. — McClung's  Executors  v. 
Spotswood  ,  19  Ala.  165;  McDonnell  v.  Branch  Bank  at 
Montgomery,  20  Ala.  313. 

3.  The  filing  of  a  plea  of  set-ofr,  'which  is  a  cross  ac- 
tion, is  a  sufficient  presentation  of  the  claim  to  prevent 
the  bar  of  the  statute  of  non-claim.  Moreover,  the  ad- 
ministrator had  not  published  notice  to  creditors,  as  re- 
quired by  the  statute. — Code,  §  1731. 

Maiitin,  Baldwin  &  Savre,  contra. — 1.  The  checks  were 
higher  and  better  evidence  than  the  parol  testimony  of 
the  clerk,  if  living,  would  have  been;  and  consequently, 
were  better  evidence  than  the  entries,  which  are  only  ad- 
missible, when  the  clerk,  if  living,  would  be  competent 
to  prove  the  facts. — Batre  v.  Simpson,  4  Ala.  312. 

2.  When  the  facts  are  ascertained,  agency  becomes  a 
question  of  law. — Wood  v.  McCain,  7  Ala.  800;  Dearing 
v.  Lighttbot,  10  Ala.  28;  Scarborough  v.  Reynold*, 
12  Ala.  -■>-;  McKeu'zie  v.  Stevens,  19  Ala.  691;  Story  on 
Agem-y,  • 

3.  The  notes  were  barred  by  the  statute  of  non-claim, 
which  does  not  require  the  publication  of  notice  to  cred- 
itors before  it  begin  a  to  run. — Code,  §  1883;  McHenryV. 
Wells'  Adm'r,  2^  Ala,  451. 

STONE,  J.— [Feb.  12,  1861.]— The'dootrme  is  settled 

in  this  state,  "that  l  accounts,  kept  by  a  d 


a 


182  SUPREME  COURT 


Bank  of  Montgomery  v.  Plannett's  Adm'r. 


clork,'  and  all  other  entries  or  memoranda  made  in  the 
course  of  business  or  duty,  by  any  one  who  would  at  the 
time  have  been  a  competent  witness  to  the  fact  which  he 
registers,  are  admissible  evidence." — Batrc  v.  Simpson, 
4  Ala.  805;  Everly  v.  Bradford,  ib.  371;  Clemens  v.  Pat- 
ton,  Donega-n  &  Co.,  9  Por.  289.  This  evidence  is  re- 
ceived on  what  is  considered  the  moral  necessity  of  the 
case.— Phil.  Ev.  (Cow.  &  Hill's  Notes,  by  Van  Cott,)  1  pt. 
305,  el  seq.;  1  Greenl.  Ev.  §§  115,  120. 

This  doctrine  resting  on  the  presumed  necessity  of  the 
case,  it  follows  that,  when  the  reason  ceases,  the  rule  also 
fails  ;  ctssante  ralionc,  cessat  ipsa  lex. — Cow.  &  H.  Notes, 
1st  pt.  310.  Hence,  when  goods  were  delivered  on  writ- 
ten orders,  it  was  ruled  by  the  supreme  court  of  Pennsyl- 
vania, (Ch.  J.  Tilghman  delivering  the  opinion  of  the 
court,)  that  the  books  were  not  evidence. — Smith  v.  Lane, 
12  S.  &  K.  80.  To  the  same  effect  are  the  cases  of  Ten- 
hroko  v.  Chapman,  1  Coxc,  (N.  J.)  288;  Townley  v. 
W-ooley,  lb.  377.     Sec  Cow.  &  it.  Xotcs,  1  pt.  310. 

In  this  case,  it  is  shown  that  the  custom  of  the  bank 
was,  to  pay  out  moneys  on  the  checks  of  its  depositors^  < 
and  not  otherwise.  This  removes  the  necessity  under 
which  the  books  would  be  evidence,  and,  of  course,  ren. 
ders  the  rule  inapplicable.  The  circuit  court  did  not  err 
in  excluding  the  'nooks  from  the  jury. 

[2.]  The  record  shows  that  the  notes  of  Mr.  Plannett 
QQt  presented  to  the  administrator  within  eighteen 
(mouths  after  they  accrued,  nor  within  eighteeu  months 
after  the  grant  of  letters  of  administration. — Code,  §1883. 
It  is  not  essential  to  the  operation  of  the  bar,  that  the 
administrator  should  have  given  notice  under  the  statute, 
(Code,  §  1734,)  although  his  failure  to  do  so  is  obviously 
a  breach  of  duty  on  his  part. — See  Cawthorn  v.  Weisinger, 
6  Ala.  711 ;  Mellenry  v.  Wells,  28  Ala.  451.  The  court 
did  not  err,  in  charging  the  jury  that  the  notes  of  Mr. 
Plannett,  offered  in  defense,  were  barred  as  a  set-off  by  ' 
non-claim. 

[3.]  In  charging  "that  the  evidence  was  not  sufficient 
to  show  that  Carnot  had  authority  to  draw  said  checks, 


OF  ALABAMA. 183 

Bank  of  Montgomery  v.  Plannett's  Adm'r. 

or  any  of  them,  in  behalf  of  the  plaintiff's  intestate," 
the  circuit  court  erred.  In  the  case  of  McClung  v.  Spots- 
wood,  (19  Ala.  165,)  this  court,  Ch.  J.  Dargan  delivering 
the  opinion,  said:  "But  in  most  cases,  if  not  in  all,  the 
question  of  ngency  is  a  matter  of  fact,  which  it  is  the 
province  of  the  jury  to  determine  upon,  under  the  iri- 
structions  of  the  court;  and  if  the  testimony  tends  to 
prove,  that  the  person  acting  as  agent  had  authority  from 
his  principal  to  do  the  act,  then  it  is  manifest  that  the 
court  cannot  exclude  from  the  jury  the  act  itself,  without 
over-stopping  the  law  of  its  duty,  and  assuming  to  deter- 
mine  a  matter  which  belongs  to  the  jury,  to-wit,  the  au- 
thority of  the  agent  to  do  the  act."  In  the  case  from 
which  we  have  quoted,  the  fact  of  agency  was  left  by  the 
testimony  in  extreme  doubt;  yet  this  court  ruled,  that 
the  circuit  court  erred  in  excluding  the  evidence  from  the 
jury.  In  the  case  of  McDonnell  v.  Br.  Bank  at  Mont- 
gomery, (20  Ala.  313,)  a  similar  decision  was  pronounced 
on  testimony  of  agency  which  was  inconclusive. — Roland 
v.  Logan,  18  Ala".  307;  Krebs  v.  O'Grady,  23  Ala.  726; 
King  v.  Pope,  28  Ala.  601;  Fisher  v.  Campbell,  0  Tor. 
210;  t>trawbridge  v.  Spann,  8  Ala.  821;  Barry  v.  Foyles, 
1  Pet.  S.  C.  311. 

In  the  case  of  Irwin  v.  Buckaloe,  (12*  Serg.  &  R.  35,) 
the  question  was,  whether  one  Moore  was  the  agent  of 
the  defendant.  The  only  evidence  of  agency  was  that  of 
one  witness,  who  testified,  that  "he  had  done  business 
with  Moore,  as  the  agent  of  defendant,  one  or  two  years 
after  the  date  of  the  receipt ;  and  that  the  defendant,  about 
the  same  time,  had  told  him  that  Moore  was  his  agent, 
and  did  business  for  him."  Gibson,  J.,  in  delivering  the 
opinion  of  the  court,  said,  "  The  admission  was  a  cirCUHl- 
Stana  left  to  the  jury,  wiMi   a  direction   to   regard 

tin-  receipl  as  competent  evidence  or  otherwise,  as  they 
•hould  1  1,  or  not,  of  the  existence  of  tin 

when  the  receipt  w.  ,]." 

Thes(  authorities  arc  full  to  the  point,  that  the  evidence 
i"  tli  -nglit  to  have  gone  to  the  jury,  under  an  ap- 

propriate   charge,   for  that  body   to   have    paste  J  on  tin- 


tM  T  ^ 


184  SUPREME  COURT 


Creswell's  Executor  v.  Walker. 


question  of  Carnot's  agency.  As  to  the  two  checks 
drawn  for  the  payment  of  the  two  notes  of  Mr.  Plannett, 
and  which,  as  the  record  informs  us,  "purported  on  their 
face  to  be  drawn  for  the  payment  of  said  ywtes,"  we  do  not 
perceive  on  what  principle  they  were  excluded  from  the 
jury.  These  notes  were  given  for  the  rent  of  the  billiard- 
tables,  and  Mr.  Plannett  was  absent  from  the  State  when 
they  matured.  The  proof  is  quite  full,  that  Mr.  Carnot 
was  the  agent  of  Mr.  Plannett  in  the  control  of  the 
billiard-room.  These  were  facts  clearly  for  the  consider- 
ation of  the  jury,  on  the  question  of  payment  of  the 
notes  by  those  two  checks.  So,  forming  our  opinion  on 
the  evidence  recited  in  the  record,  we  think  the  whole  of 
the  check*  and  orders  should  have  been  left  before  the 
jury,  in  connection  with  the  other  evidence  on  the  ques- 
tion of  agency,  for  decision  by  that  body.  If,  under 
proper  instructions,  they  found  that  Mr.  Carnot  was  the 
agent  of  Mr.  Plannett  to  control  his  funds  in  bank,  and 
that  on  his  checks,  as  such  agent,  the  deposit  had  been 
drawn  from  the  bank,  this  would  amount  to  a  good  de- 
fense to  "this  action  under  the  plea  of  payment.  We  need 
scarcely  ^^i],  that  the  doctrine  of  non-cjaim  has  no  ap- 
plication to  payments. 
Reversed  and  remanded. 


CJtESWELL'S  EXECUTOR  vs.  WALKER. 

[dill  in  eqoii  i  rOB,  nut  instructions  in  execution  of  trusts.] 

1.  Validity  of  testamentary  trust  for  emancipation  of  slaves  at  their  elec- 
tion.— A  testamentary  trust  for  the  emancipation  of  slaves,  the 
execution  of  which  Is  made  to  depend  on  the  election  of  freedom 
by  the  slaves  themselves,  is  void,  because  they  have  not  the  legal 
capacity  to  make  the  election  ;  and  the  same  principle  applies, 
where  the  executor  is  directed  to  carry  the  slaves,  for  the  purpose 


Off  ALABAMA.  »  185 

Cresswell's  Executor  v.  Walker. 

of  emancipating  them,  "to  some  non-slaveholding  State,  or  to  the 
republic  of  Liberia,  as  the  said  slaves  may  prefer." 

Appeal  from  the  Chancery  Court  of  Greene. 
.Heard  before  the  Hon.  James  B.  Clark. 

The  bill  in  this  case  was  filed  by  the  executor  of  John 
T.  Oresswell,  deceased,  against  Mrs.  Zernula  Walker  and 
others,  as  legatees  and  heirs-at-law  of  said  testator;  and 
sought  the  direction  and  instructions  of  the  court,  as  to 
the  construction  of  the  testator's  will,  and  particularly  as 
to  the  validity  and  execution  of  the  trusts  contained  in 
the  fourth  clause,  which  was  in  the  following  words:  "It 
is  further  my  will  and  desire,  that  1113'  faithlul  slaves, 
Tom,  Dublin,  Ann  and  Maria,  be  liberated  and  set  free; 
and  to  effect  that  object,  toy  executor  will  have  them  ta- 
ken, at  the  expense  of  my  estate,  to  some  non-slavehold- 
ing State,  or  to  the  republic  of  Liberia,  as  the  said  slaves 
may  prefer,  there  to  be  free,  and  will  furnish  each  of  them 
such  an  outfit,  out  of  my  estate,  as,  in  the  judgment  of 
my  executor,  will  render  them  comfortable.  But,  should 
said  slaves,  or  any  one  or  more  of  them,  prefer  to  remain 
in  slavery,  then  I  do  hereby,  in  that  event,  will  and  be- 
queath said  slaves,  or  such  of  them  as  prefer  to  remain  in 
slavery,  to  my  sister,  Zeuly  Walker,  requiriug  her  to  will 
and  bequeath  said  slave  or  slaves,  at  her  death,  to  such 
peftoo  or  persons  as  she  may  believe  will  treat  them  with 
kiudip  35  and  humanity.  If  some  of  them  prefer  to  re- 
main, my  executor  will  send  those  of  them  who  will  go, 
and  furnish  an  outfit  for  them."  The  will  was  executed 
and  published  on  the  4th  October,  I80G,  in  Greene  coun- 
ty, the  i.l. icc  of  the  testator's  residence;  and  he  departed 
this  life  a  tew  days  afterwards.  The  will  was  duly  ad- 
d  to  probate,  and  letters  testament ;>ry  were  granted 
imuel  L.  Cresswell,  who  was  therein  appointed  ex- 
ecutor. The  executor  sold  the  lands  and  perishable 
PrOp<  ;  :  •  paid  all  the  debts  and  specific  legacies,  and  dis- 
tributed  the  estate  according  to  the  provisions  of  the  will; 
only  keeping  the  slaves  mentioned  in  the  fourth  clause, 
and  retaining  in  his  hands  money  enough  to  provide  for 
1.; 


186  «        SUPREME  COURT 

Cresswcll's  Executor  v.  Walker. 

their  expenses  and  outfit.  In  his  bill  he  asserted,  that 
the  slaves  had  frequently  expressed  to  him  their  desire  to 
be  emancipated,  and  had  designated  the  country  to  which 
they  wished  to  be  carried  :  and  declared  his  readiness 
and  willingness  to  execute  the  trusts  in  their  favor,  if  he 
could  legally  do  so.  The  defendants  filed  answers,  ad- 
mitting all  the  facts  alleged  in  the  bill,  but  insisting  that 
the  trusts  for  the  benefit  of  the  slaves  were  void.  On 
final  hearing,  on  bill,  answers,  and  agreed  facts,  the  chan- 
cellor held,  on  the  authority  of  Carroll  and  Wife  v.  Brum- 
by, (13  Ala.  102,)  that  the  trusts  for  the  benefit  of  the 
slaves  were  void,  and  dismissed  the  bill,  at  the  costs  of 
the  estate;  and  his  decree  is  now  assigned  as  error. 

Wm.  P.  Webb,  for  the  appellant. — The  fourth  clause 
of  the  testator's  will  creates  a  valid  trust,  which  the  ex- 
ecutor is  bound  to  execute. — Atwood  v.  Beck,  21  Ala.  . 
590;  Abercrombie  v.  Abercrombie,  27  Ala.  489;  8  Ire- 
dell"? Eq;  253;  9  Humph.  GIG:  19Geo.  35;  4  Leigh,  252; 
12  Grattan,  117.  What  was  said  to  the  coutrary  in  the 
ease  of  Carroll  v.  Brumby,  (13  Ala.  102,)  must  be  re- 
garded as  a  mere  dictum,  and  is  not  sustained  by  the  au- 
thority cited  from  6  Porter,  269:  and  the  case  itself  is 
opposed  to  the  entire  current  of  authority  in  other  south- 
ern States. — See  cases  above  cited;  also,  6  Sm.  &  Mar. 
93.;  5  How.  Miss.  30;,;  10  P.  Monroe,  70;  2  Hill's  Ch. 
305;  <">  Randolph.  65 •!.  Even  if  that  case  be  adhered  to, 
as  a  correct  exposition  of  the  law,  the  trusts  in  this  case 
be  held  valid;  for  t lie  testator  first  directs  his  ex- 
ecutor to  emancipate  the  slaves,  and  then  gives  the  slaves 
the  election  to  defeat  the  bequest  by  remaining  in  slavery; 
and  if  they  have  not  the  legal  capacity  to  make  such 
election,  the  condition  is  void,  and  the  trust  stands  unaf- 
fected by  it  —  Osborne  v.  Taylor,  12  Grattan,  117  ;  2  Wil- 
liams op  Executors,  (4  Ainer.  ed.)  1084-86;  3  Vesey, 
325;  1  Jarman  on  Wills,  680-84; 

Jas.  D.  Webb,  contra. — This  court  has  expressly  deci-  ^  • 
ded,  that  slaves  have  not  the  legal  capacity  to  choose  be- 


OF  ALABAMA.  187 


CresswelPs  Executor  v.  Walker, 


tween  freedom  and  slavery. — Carroll  v.  Brumby,  13  Ala. 
102.  That  decision  is  founded  on  sound  legal  principles; 
and  in  the  cases  to  the  contrary,  cited  for  the  appellant, 
the  question  was  not  raised  in  the  argument  of  counsel, 
and  seems  to  have  been  assumed  without  consideration 
by  the  court.  In  this  case,  the  will  gives  the  slayes  the 
right  to  elect  between  freedom  and  slavery^  and  to  choose 
the  country  to  which,  if  they  elect  freedom,  they  shall 
be  removed;  and  the  executor  cannot  carry  out  the  trust 
according  to  the  provisions  of  the  will,  unless  he  is. gov- 
erned by  their  wishes,  and  conforms  to  their  election. 

R.  W.  WALKER,  J.— [Jan.  29,  1861.]— In  Carroll  and 
Wife  v.  Brumby,  (13  Ala.  102,)  the  testator  had  by  his 
will  declared,  that  certain  of  his  slaves  should  be  per- 
mitted to  go  to  Africa,  their  passage  to  be  paid,  &c;  but, 
if  they  desired  to  remain  subject  to  his  daughter,  as  they 
had  been  to  him,  they  should  be  permitted  to  do  so;  but 
in  no  event  to  be  sold,  or  deprived  of  this  privilege,  either 
before  or  after  the  death  of  his  said  daughter.  "Should 
they,  or  any,  or  all,  prefer  not  to  emigrate,  then,  and  in 
that  event,  they  shall  be  subject  to  my  daughter,  as  they 
are  to  me."  In  passing  upon  this  will,  this  court  held, 
that  the  testator  intended  to  give  the  slaves  the  option 
of  freedom  or  servitude,  but  thai  they  had  not  the  legal  ca- 
pacity to  rnake  the  choice;  and  that,  the  bequest  of  freedom 
being  void,  the  title  to  the  slaves  was  vested  iu  the 
(laughter.  The  same  question  has  never  since  arisen  iu 
this  court;  and  we  are  now  asked  to  reconsider  it,  be- 
lt, as  is  alleged,  the  decision  is  opposed  to  the  cur- 
rent of  authorities  upon  the  subject,  lias  no  solid  founda- 
tion of  reason'  to  support  it,  and  appeals  to  have  beea 
made  without  a  special  discussion  of  the  principle  in- 
volved. 

It  is  true  that  many  ,ay  be  found,  which  silei 

•■  the  principle,  that  a  bequest  of  freedom,  which 
■Hid,  is  not  rendered  void  by  the  fact,  that 
the  election  of  freedom  by  the  slave  is  tile  d<  con- 

dition on  which  it  is  to  take  effect.     The  courts  of  North 


188  SUPREME  COURT 

Cress  well's  Executor  v.  Walker. 

Carolina,  South  Carolina,  Georgia,  Mississippi,  Kentucky, 
and  Tennessee,  have  all  treated  as  valid  bequests  which 
provided'  lor  an  election  by  slaves  of  freedom  or  servi- 
tude.— Washington  v.  Blunt,  8  Ired.  Eq.  253;  Jordan  v. 
Bradley,  Dudley's  R.  170;  Frazier  v.  Frazier,  2  Hill's 
Ch.  305;  Cleland  v.  Waters,  10  Geo.  35;  Ross  v.  Vert- 
ner,  5  How.  Miss.  305;  Leech  v.  Cooley,  6  Sin.  &  M. 
93;  Graham's  Exr.  v.  Sam,  7  B.  Monroe,  403;  John  v. 
Moreman,  8  B.  Mon.  100;  Adams  v.  Adams,  10  B.  Mon. 
20;  Isaac  v.  McGill,  9  Humph.  616;  Wade  v.  Am.  Col. 
Society,  7  Sm.  &  M.  694. 

Mr.  Cobb,  in  his  work  upon  the  law  of  negro  slavery, 
notices  the  suggestion  made  in  Carroll  v.  Brumby,  (supra,) 
that  a  slave  is  incapable  of  making  a  choice  between  free- 
dom and  slavery,  and  says  in  reference  to  it:  "The  sug- 
gestion has  not  been  approved  by  other  courts,  and  we 
cannot  see  the  force  of  it.  The  theory  of  a  complete 
annihilation  of  will  in  the  slave,  is  utterly  inconsistent 
with  all  recognition  of  him  as  a  person,  especially  as  re- 
sponsible criminally  for  his  acts." — Cobb  on  Slavery, 
§  363. 

Notwithstanding  this  long  array  of  authorities,  appa- 
rently in  conflict  with  it,  we  are  persuaded  that  the  prin- 
ciple announced  by  this  court  in  Carroll  v.  Brumby, 
a,)  is  a  sound  one;  and  that  any  trust  for  emancipa- 
tion, in  the  execution  of  which. the  election  of  the  slave 
between  freedom  and  servitude  is  prescribed  as  a  neces- 
sary step,  must  fail,  because  slaves  have  not  the  legal  ca- 
pacity to  make  the  election. 

It  is  a  remarkable  fact,  and  one  which  may  be  thought 
to  militate  against  the  opinion  we  have  just  expressed, 
that  in  none  of  the  numerous  cases  we  have  cited,  except 
Cleland  v.  Waters,  (19  Geo.  35,)  does  it  appear  that  the 
question  as  to  the  legal  capacity  of  slaves  to  make  such 
election,  was  distinctly  made  by  counsel,  or  fully  consid- 
ered, or  expressly  adjudged  by  the  court.  Hence  we  have 
spoken  of  these  eases  as  silently  recognizing  the  validity 
of  bequests  providing  for  an  election  by  slaves  of  free- 
dom or  servitude.     The  legal  capacity  of  slaves  to  make 


OF  ALABAMA.  189 


Cresswell's  Executor  v.  Walker. 


such  election  has  been  rather  assumed  than  settled  in 
them.  Consequently,  with  the  single  exception  just 
mentioned,  they  have  hot  the  weight  which  would  attach 
to  cases  in  which  the  question  had  been  directly  made 
and  argued  by  counsel,  and  fully  considered,  and  dis- 
tinctly decided  by  the  court. 

Assuming,  then,  that  the  trust  in  this  case  cannot  be 
executed  in  the  manner  pointed  out  by  the  testator,  un- 
less the  slaves  choose  to  be  emancipated,  the  question  is, 
whether  the  making  of  this  election  is  an  act  which 
slaves  have  the  legal  capacity  to  perform.  Can  a  mas- 
ter, by  his  will,  clothe  his  slaves  with  the  irrevocable 
power  of  determining  and  changing,  by  an  uncontrolla- 
ble act  of  their  will,  their  own  civil  status?  Before  we 
can  give  an  affirmative  answer  to  these  questions,  we 
must  be  prepared  to  say,  that  a  master  may  confer  upon 
slaves  the  legal  right  to  acquire  for  themselves,  by  their 
own  unforced  and  unrestrainable  act,  benefits  and  privi- 
leges inconsistent  with  the  condition  of  slavery,  and,  at 
the  same  time,  and  by  the  same  act,  to  divest  the  prop- 
erty rights  of  others. 

So  far  as  their  civil  status  is  concerned,  slaves  are  mere 
property,  and  their  condition  is  that  ol  absolute  civil  in- 
capacity. Being,  in  respect  of  all  civil  rights  and  rela- 
tions, not  persons,  but  things,  they  are  incapable  of  own- 
ing property,  or  of  performing  any  civil  legal  .act,  by 
which  the  property  of  others  can  be  alienated,  or  the  re- 
lations ot  property,  or  legal  duties  or  trusts  in  regard 
thereto,  in  any  wise  affected.  In  a  late  case,  the  supreme 
court  of  Xorth  Carolina  used  this  language:  "Under our 
■m  of  law,  a  slave  can  make  no  contract.  In  the 
nature  of  things  he  cannot.  lie  is,  in  contemplation  of 
law,  not  a  person  for  that  purpose.  lie  has  no  legal  ca- 
pacity to  make  a  contract;  hk  h&s  no  legaLmkd.  He  is 
the  property  of  his  master,  and  all  the- proceeds  of  his 
tybor  belong  to  his  owner.  If  property  is  devised  or  ; 
to  him,  the  devise  or  bequest  is  void,  and  the  persoi 

n  either  belongs  to  the  giver,  i  i  the  prop- 

erty of  the  owner.     A  slave  has  no  legal  status  in 


190  SUPREME  COURT 

— ■ — . » . 

Cresswell's  Executor  v.  Walker. 


courts,  except  as  a  criminal,  or  as  a  witness  iu  certain 
cases."— Butler  v.  Faulk,  4  Jones'  L.  R.  233. 

Chancellor  Kent,  in  speaking  of  the'laws  of  the  south- 
ern States  on  the  subject  of  negro  slavery,  says:  "They 
are,  doubtless,  as  just  and  as  mild  as  is  deemed  by  those 
governments  to  be  compatible  with  the  public  safety,  or 
with  the  existence  of  that  Bpecies  of  property;  and  yet, 
in  contemplation  of  their  laws,  slaves  are  considered,  in 
some  respects,  as  things,  or  property,  rather  than  persons, 
and  are  vendible  aa  personal  estate.  They  cannot  take 
property  by  descent  or  purchase;  and  all  they  find,  and 
all  they  hold,  belongs  to  the  master.  They  cannot  make 
lawful  contracts,  prived  of  civil  rights." — 

2  Kent,  253.  So,  in  Emerson  v.  1  lowland,  (1  Mason's  R. 
45,)  Judge  Story  says,  that  the  slave  "has  no  civil  rights  or 
privileges" 

In  the  case  of  Girod  v.  Lewis,  (6  Martin's  R.  559,)  it  is 
Baid,  thai  slaves  have  no  legal  capacity  to  assent  to  any 
contract;  that  whilst,  with  the  consent  of  the  master, 
they  have  the  moral  power  to  enter  into  such  a  connec- 
tion as  that  of  marriage,  the  marriage,  whilst  they  re- 
main in  a  state  of  slavery,  could  be  productive  of  no 
civil  effect,  '  I  of  all  civil  rights. 

The  numerous  derisions  in  which  it  has  been  held,  that 
a  promise  made    to  a  slave,  or   for  his   benefit,  is  not  en- 
forcible  in  any  legal  tribunal;  that  a  slave  cannot  sue  or 
ued,  except   that  he   is    clothed    with   the  statutory 
right  of  instituting  a  suit    for  freedom;  that  he  cannot 
ire  or  own  property;  thai   he  has  no  legal  capacity 
t<>    make   a   contract,    not  even    that   of   marriage, — all 
proceed   upon  the    fundamental    idea,   that    our    slaves 
have  no    civil   or  social  right-,  and  are  incapable  of  per- 
forming by   their  own  volition,  and  as  a  matter  of  right, 
any  civil  act  which  can  be  made  the  lawful  foundation  of 
iig  new  rights  in   themselves,  or  of  divesting  the  ex- 
isting rights  or  determining  in  any  respect  the  legal  du- 
ties of  others. 

According  to  the  legal  conception  of  slavery,  as  it  ex- 
ists in  the  southern  States,  a  human  being  endowed  with 


OF  ALABAMA.  191 


Cresswell's  Executor  v.  Walker. 


civil  rights  cannot  be  a  slave.  The  possession  of  these 
rights  is  incompatible  with  the  condition  of  slavery,  and 
any  attempt  to  confer  them  upon  a  slave,  durante  sercitute,  > 
is  an  effort  to  accomplish  what  is  legally  impossible. 
Our  law  recognizes  no  other  Status  than  that  of  absolute 
freedom,  or  absolute  slavery;  and  the  courts  have  uni- 
formly rejected,  as  a  legal  solecism,  the  idea  that  a  slave, 
while  a  slave,  can  be  invested  with  civil  rights  or  legal 
capacity. — Abererombie  v.  Abercrombie,  27  Ala.  494» 
Therefore,  any  attempt  of  a  master  to  clothe  his  slave 
with  the  power  to  perform  an  act,  which  involves  the  ex- 
ercise of  civil  rights  and  legal  capacity,  must,  in  the  na- 
ture of  things,  fail. 

It  seems  too  clear  for  dispute,  that,  where  a  bequest  is 
made  to  depend  upon  the  declaration  by  the  legatee  of 
liis  election  to  accept  the  gift,  the  making  of  this  elec- 
tion is  a  civil  act.     If  a  grant  of  an  estate  be  made  to  a 

person,  on  condition  that  he  would  electa  trade;  or, 
if  a  bequest  be  made  of  either  one  of  two  named  slaves 
the  legatee  may  choose,  if  he  will  elect  between  the  two. 
it  could  not  be  seriously  contended,  that  the  making  of 
the  election  would  not  be  a  civil  act.  Purely  that  is  a 
civil  act,  the  performance  of  which  cither  creates  or  di- 

3  valuable  rights,  or  imposes  a  legal  duty,  or  perfects 
a  trust,  which  courts  may  enforce.     So,  when   the  act  of 

.\<  ,  in  choosing  between  freedom  and  slavery,  is  a 
necessary  step  in  the  execution  of  a  trust,  the  election  is 
a  civil  act,  and  the  trust  is  void,  because  it  presupposes 
and  requires  that  a  slave,  durante  servitute^  shall  be  invested 
with  privileges  which  do  not  and  cannot  belong  to  one 
in  his  condition.  Such  a  bequest  is  an  effort  on  the  part 
of  t;  tor  to  impart  to  slaves  rights  which  belong  ex- 

\ ■•■ly  to  freemen — thus  placing  them  In  that  middle 
■'. '  en    absolute    freedom    and  absolute   sla\ 

b  our  law,  upon  grounds  of  paramount  public  policy, 

:o  recognize  as  legally  possible. 

It  i  human  being-;,  and  are  endo1 

with  intellect,  <  on-.  ,,1  will.    Their  moral  and  in  - 

.   qualiti  rmine,  to  a  considerable  extent, 

7 


192  •  SUPREME  COURT 

Cresswell's  Executor  v.  Walker. 


their  value,  and  are  often  looked  to  in  ascertaining  the 
rights  and  liabilities  of  others  in  relation  to  them  as  ar- 
.  tides  of  property. — See  Young  v.  Burton,  1  McMull.Eq. 
255;  Bean  v.  Summers,  13  Gratt.  412;  Boyce  v.  Ander- 
son, 2  Peters,  150.  Being  endowed  with  intelligence, 
conscience,  and  volition,  they  are  deemed  capable  of  com- 
mitting crime;  and  the  same  public  policy  which,  so  far 
as  the  performance  of  civil  acts  is  concerned,  refuses  to 
consider  them  as  persons,  gives  them  a  criminal  status, 
and  recognizes  tbcin  as  persons  in  respect  of  acts  involv- 
ing criminal  responsibility,  Because  they  are  rational 
human  beings,  they  are  capable  of  committing  crimes; 
and,  in  reference  to  acts  which  are  crimes,  are  regarded 
as  persons.  Because  they  are  slaves,  they  are  necessarily, 
and,  so  long  as  they  remain  slaves,  incurably,  incapable 
of  performing  civil  acts;  and,  in  reference  to  all  such, 
they  are  things,  not  persons. 

This  obvious  distinction  is  overlooked  by  Mr.  Cobb,  in 
his  criticism  of  the  decision  in  Carroll  v.  Brumby. — See 
Cobb  on  Slavery,  §  363.  So  far  as  civil  acts  are  concerned, 
the  slave,  not  being  a  person,  has  no  legal  mind — no  trill 
which  the  law  can  recognize.  But,  as  soon  as  we  pass 
into  the  region  of  crime,  lie  is  treated  as  a  person,  as  hav- 
ing a  legal  mind,  a  will,  capable  of  originating  acts  for 
which,  he  may  lie  subjected  to  punishment  as  a  criminal. 
Considered  in  his  relation  to  this  latter  class  of  acts,  the 
theory  of  a  complete  annihilation  of  will  in  the  slave,  is 
lly  unfounded;  while  in  relation  to  the  former  class 
of  acts,  it  is  entirely  consistent,  and,  indeed,  is  the  only 
theory  that  can  be  consistent,  with  the  fundamental  idea 
of  negro  slavery  as  it  exist!  with  us — namely,  that  in  re- 
spect of  civil  rights  and  legal  capacity  to  perform  acts  of 
a  civil  nature,  the  slave  is  not  ;>  person,  but  a  thing. 

It  must  not  be  suppled  from  what  has  been  said,  that, 
our  laws  fail  to  afford  slaves  adequate  protection  against 
oppression  or  injury.  This  protection  is  not  only  etecurea 
by  the  fundamental  law,  the  constitution  of  the  State, 
(Art.  <!,  §§  2  and  3,)  but  many  statutes  have  been  enacted 
with  a  view  to  the  same  cud.     The   law  punishes  an  as- 


OF  ALABAMA.  193 


Cresswell's  Executor  v.  Walker. 


aault  aud  battery  upon  them  by  any  third  person;  pro- 
hibits the  infliction  upon  them  of  cruel  or  unusual  pun- 
ishment; punishes  the  master,  or  other  person  standing 
in  that  relation,  who  fails  to  provide  the  slave  with  a  suf- 
ficiency of  healthy  food,  or  necessary  clothing,  or  to  pro- 
vide for  him  property  in  sickness  or  old  age,  or  treats 
him  in  any  other  way  with  inhumanity;  and  the  master 
cannot  relieve  himself  of  the  legal  obligation  to  supply 
the  slave's  necessary  wants,  by  voluntarily  putting  the 
slave  away  from  him,  without  providing  some  one  to  oc- 
cupy the  relation  of  master  to  him.  The  law  also  secures 
to  slaves  the  right  of  trial  by  jury,  for  all  offenses  above 
petit  larceny,  aud  provides  them  with  counsel,  in  certain 
8,  at  the  public  expense. — See  Atwood  v.  Beck, 
21  Ala.  609;  4  Ala.  66;  Code,  §§  3297,  3300,  3316,  3319, 
3321'. 

There  is  nothing  inconsistent  with  the  views  expressed 
in  this  opinion,  in  the  fact  that  a  master  may  make  his 
slave  an  agent.  In  that  case,  the  acts  of  the  slave  are 
but  the  acts  of  the  master;  and  this  it  is  which  gives 
them  all  their  validity  and  effect.  Hence  it  has  been 
held,  that  a  slave  cannot  act  as  the  agent  of  any  person 
but  his  master. — State  v.  Hart,  4  Ired.  246.  "The  agen- 
cy of  the  slave,  in  truth,  instead  of  affording  any  argu- 
ment in  behalf  of  the  existence  of  his  social  or  civil 
rights,  is  but  an  instance  or  illustration  of  the  complete 
dominion  of  the  master;  of  his  entire  control  over  all 
the  powers  and  faculties  of  the  slave;  and  ot  his  right, 
consequently,  to  use  him  as  an  instrument  or  medium 
through  which  to  make  or  execute  contracts  with  third 
"—Bailey  v.  Poindexter,  14  Grattan,  132,  198. 

In  the  case  just  cited,  the  question  of  the  legal  capac- 
ity of  slaves  to  choose  between  freedom  and  slavery  un- 
derv,  ent  a  most  elaborate  discussion  by  eminent  counsel, 
and  .  the  fullest  consideration  from  the  court;  and 

elusion  attained  was,  that  a  bequest  of  freedom, 
dependent  upon  the  election  of  the  slaves  to  b 
vol.!  ;il  capacity  to  in. ike  the 

election.     To  the  learned  argutn  'he  counsel,  and 


194 SUPREME  COURT 

Cresswell's  Executor  v.  Walker. 


the  able  opinion  of  Daniel,  J.,  in  that  case,  we  are 
chiefly  indebted  for  the  line  of  argument  above  present- 
ed. On  that  occasion,  the  question  seems  to  have  re- 
ceived for  the  first  time  the  deliberate  consideration 
which  its  great  importance  demands;  and  under  these 
circumstances,  the  opinion  pronounced  is  faiily  entitled 
to  outweigh  a  score  of  cases  on  the  opposite  side,  where 
the  point  seems  to  have  been  rather  taken  for  granted, 
than  expressly  decided. — See,  also,  Williamson  v.  Coulter, 
14  Graft.  394. 

It  is  said,  however,  that  the  trust  in  this  case  is  not  de- . 
pendent  on  the  election  of  the  slaves  to  be  free,  but  is 
perfect  without  it;  that  the  election  which  they  are  au- 
thorized to  make,  is  the  election  to  remain  in  slavery; 
and  that  this  is  prescribed,  not  as  a  necessary  step  in 
the  execution  of  the  trust,  but  as  a  condition  by  which 
it  may  be  defeated.  The  argument  is,  that  the  testator 
iir.-t  creates  a  valid  trust,  by  directing  his  executor  to  re- 
move the  slaves  for  the  purpose  ui'  emancipating  them, 
and  then  provides,  as  the  condition  which  shall  defeat  it, 
the  election  of  the  slaves  to  remain  in  slavery.  As  slaves 
cannot,  by  any  voluntary  act  of  theirs,  defeat  a  complete, 
any  more  than  they  can  perfect  an  incomplete  trust,  it 
would  follow,  if  this  view  of  the  will  is  correct,  that  the 
condition  would  be  void,  because  impossible,  and  the 
trust  would  stand  unaffected  by  it. 

We  will  not  inquire,  whether,  taking  the  whole  will 
together,  it  does  not  appear  that  the  election  of  the  slaves 
to  be  Tree,  is  an  act  essential  to  the  execution  of  the  trust 
in  the  manner  prescribed  by  the  testator. — See  William- 
son v.  Coulter,  14  Gratt.  894.  For,  however  that  may 
be,  it  is  obvious  that  the  trust  is  made  to  depend  on  the 
election  by  the  slaves  of  the  place  to  which  they  are  to 
be  removed.  The  direction  is,  that  the  executor  shall 
have  them  "taken  to  some  non-slaveholding  State,  or  to 
the  republic  of  Liberia,  as  tkt  said  slaves  may  'prefer."  In 
trusts  of  this  character,  the  rule  cy  prcs  is  not  adopted  or 
applied;  and  until  the  slaves  are  carried,  in  execution  of 
the  trust,  to  the  Stale  or  country  to  which  the  will  directs  them 


OF  ALABAMA.  195 


Cresswell's  Executor  v.  Walker. 


to  be  carried,  they  do  not  acquire  the  capacity  of  free- 
men, but  remain  subject  to  the  disabilities  of  slaves. — 
Hooper  v.  Hooper,  32  Ala.  673. 

If  the  direction  is  for  the  removal  of  the  slaves,  to  a 
particular  State,  and  the  execution  of  the  provision  be- 
comes impossible,  from  the  refusal  of  such  State  to  ad- 
mit free  negroes  within  its  limits,  the  bequest  fails-. — 
Nancy  v.  Wright,  9  Humph.  597;  Adams  v.  Bass,  18  Geo. 
130.  The  effect  of  this  will  is,  that  the  executor  is  to 
take  the  slaves  to  that  one  of  two  named  places  which 
they  may  .select.  Unless  they  make  tlie  selection,  the 
direction  fails.  Unless  the  executor  takes  the  slaves  to  a 
place  selected  by  them,  he  does  not  take  them  to  the 
place  directed  by  the  testator.  The  trust  cannot  be  exe- 
cuted, in  the  manner  provided  by  the  will,  unless  the 
executor  consults  with  the  slaves,  and  is  governed,  as  a 
matter  of  legal  duty,  by  their  will.  As  their  election  of 
the  place  to  which  they  shall  be  taken  is  a  condition,  the 
performance  of  which  is  essential  to  the  execution  of  the 
trust  in  their  favor,  the  making  of  that  choice  is  as  much 
a  civil  act  as  an  election  between  freedom  and  slavery. 
The  case  of  Cleland  v.  Waters,  (19  Geo.  35,)  proceeds 
upon  the  idea,  that  in  principle  there  is  no  difference  be- 
tween the  capacity  of  slaves  to  choose  the  place  to  which 
they  shall  be  taken,  and  their  capacity  to  elect  whether 
tlicv  will  remain  slaves  or  be  emancipated.  We  can  per- 
ceive no  distinction.  As  the  trust  cannot  be  executed, 
according  to  the  directions  of  the  testator,  unless  this 
condition  (the  selection  by  the  slaves  of  the  place  to 
ii  they  shall  he  removed)  is  performed,  and  as  the 
;  lion  is  one  which  slaves  are  legally  incapable  of 
performing,  the  trust  ie  void. 

I»    r<     affirmed. 


1^6 SUPREME  COURT 

Garlington  v.  Jones. 


GARLINGTON  vs.  JONES. 

[motion  to  establish  bill  of  exceptions.} 

1.  Contents  of  bill  of  exceptions. — Where  written  documents  are  men- 
tioned in  the  bill  of  exceptions,  as  constituting  a  part  of  it,  but 
are  neither  copied  into  it.  nor  described  by  such  identifying 
features  as  to  leave  no  room  for  mistakes  in  the  transcribing  officer, 
they  cannot  be  regarded  as  a  part  of  the  bill.    • 

2.  Practice  on  motion  to  establish  bill  of  exceptions. — On  motion  in  the 
appellate  court  to  establish  a 'bill  of  exceptions,  which  the  presi- 
ding judge  of  the  primary  court  fuiled  or  refused  to  sign,  (Code, 
\\  2354-56,)  the  point,  decision,  and  facts,  as  a  whole,  must  be  cor- 
rectly stated  in  the  bill ;  and  if  written  documents  are  referred  to 
in  the  bill,  as  constituting  a  part  of  it,  but  are  neither  copied  into 
it,  nor  sufficiently  identified  to  be  regarded  as  part  of  it,  it  cannot 
be  established. 

From  the  Circuit  Court  of  Chambers. 
Tried  before  the  Hon  Nat.  Cook. 

In  this  case,  the  appellant's  counsel  made  a  motion  to 
establish  a  bill  of  exceptions,  which  the  circuit  judge  had 
failed  to  sign  within  the  time  required  by  law;  and  sub- 
mitted, with  the  motion,  several  affidavits  as  to  the  cor- 
rectness of  the  bill  tendered;  while  counter  affidavits 
were  submitted  on  the  part  of  the  appellees,  denying  its 
correctness.  The  following  are  extracts  from  the  bill: 
"O.n  the  trial  of  this  cause,  the  plaintiff  read  in  evidence 
to  the  jury  a  note,  as  follows  :  (Here  insert  the  note.)  " 
"The  defendants  then  read  in  evidence  the  interrogato- 
ries and  answers  of  B.  F.  Reynolds,  as  follows.  (Here 
copy  the  first  set  of  Reynolds'  interrogatories  and  an- 
swers.)" "Plaintiff  moved  to  suppress  the  deposition  of 
said  witness,  on  the  ground  that  defendants  had  taken 
his  deposition  a  second  time,  which  second  deposition  is  as 
follows.  (Here  copy  the  interrogatories  and  answers.)" 
"The  defendants  read  in  evidencethe  interrogatories  and 
answers  of  Henry  Cosmer,  as  iollows.  (Here  insert  the 
interrogatories  and  answers  of  the  witness.)"     "The  de- 


OF  ALABAMA.  197 


Garlington  v.  Jones. 


fendants  asked  the  court  to  give  the  following  ten  charges, 
each  of  which  the  court  gave.  (Here  copy  the  ten  charges 
given  at  the  instance  of  the  defendant.)"  The  documents 
referred  to  arc  not  copied  into  the  bill,  nor  is  any  other 
description  of  them  given. 

J.  Falkner,  and  D.  Clopton,  for  the  motion. 
"\V.  P.  "Chilton,  and  S.  F.  Kice,  contra.  . 

STO^TE,  J.— [March  16,  1861.]— Several  papers  are 
mentioned  in  the  bill  of  exceptions,  as  constituting  a  part 
of  it,  which  are  not  copied  into  it;  nor  are  they  described 
by  such  identifying  features  as  to  "leave  no  room  for  mis- 
takes in  the  transcribing  officer."  Under  these  circum- 
stances, those  papers  could  not  be  regarded  as  part  of  the 
bill  of  exceptions. — Bradley  v.  Audrcss,  30  Ala.  80; 
Loonej'  v.  Bush,  Minor,  418;  Quigley  v.  Campbell, 
12  Ala.  58;  Branch  Bank  v.  Moseley,  19  Ala.  222;  Stod- 
der  v.  Grant,  28  Ala.  416. 

[2.]  This  being  the  case,  we  arc  not  enabled  to  know,  and 
to  affirm  as  a  fact,  that,  on  each  point  presented  for  revis- 
ion, the  bill  of  exceptions  tendered  truly  states  "the  point, 
charge,  opinion  or  decision,  wherein  the  court  is  supposed 
to"  [have  erred],  "with  such  statement  of  the  facts  as  is 
necessary  to  make  it  intelligible." — Code,  §  8854,  To 
put  the  judge  in  fault,  for  refusing  to  sign  the  bill  of  ex- 
ceptions, the  facts  presented  must,  as  a  whole,  be  correctly 
stated.  It  is  not  enough  that,  by  striking  out  a  part,  the 
judge  could  truthfully  have  signed  and  certified  the  bal- 
ance. This  was  addressed  to  his  discretion.  The  ques- 
tion coming  before  us  in  the  form  in  which  it  does,  we 
have  no  authority  to  establish  the  bill  of  exceptions,  un- 
less the  point,  defiisioHf  und /<'>•■/<,  are  proved  to  us  to  have 
been  truly  presented  to  the  circuit  judge;  not  in  part, 
but  as  a  whole.  Anything  short  of  this,  is  not  a  true 
statement  of  the  points  and  decisions  sought  to  be 
reviewed. 

Motion  refused.       *  • 


SU1  >URT 


Williams  v.  lv«-y. 


WILLIAMS     .  ivky. 

SD  false  inpri.»onv.:nt.] 

1.  D  t»  in  trupau  and  cmc. — The  forms  of  c 
plaint  prescribed  in  thi 

and 

2.  /.'  i       ill  and  bat- 

■ 
onni'-m  I 

on  nit  :iii'l  adm 

arr  id  man  t   ui  t&s  wliich  is  not  void  on   its 

from  th  art  <>f  Lown 

the  I ! 

TV  -inplaiiit  in  thi-  case  wa-  in  t) 

:i  Williams   ") 

\     The  pfaintii  de» 

::im-l   I\  I 

and  b|  »mmitted  by  the 

ndant  on  the  plaintif  m  the    10th  Jan 

I).  1 
"The  plaintifl  claii  ndant  twenty  thou- 

dollars,  as  dan  >r  maliciously,  and  without 

d  imprisoning  him, 
plaintiff^  on  a  for  twei 

A.   !>.   1  •     .     Wherefore  he 
brin  nit." 

implaint,  for  a  i 
join  ■  ftined  the  demui 

holding,  that  tin  trespass,  and  the 

ond  Tin-  plaintiff  then  amended  his  complaint, 

by. striking  out  the  first  coaot;  and  a  trial  was  had  bt- 

ned  on  the  plea  of  not  guilty  to 
the         :  ■;  I 

During  the  1  lull  of  exceptions  shows,  the 

plaintiff  proved,  in  that,  on  the  day 


OR  ALA  RAMA.  .199 


Williams  v.  tvey. 


iti  the  complaint,  he  and  hi- .-on,  Elijah  Williams,  -while 
nding  through  the  swamp,  were  stopped  by  the  defend- 
ant, who  was  accompanied  and  assisted  by  a  white  man 
find  two  negroes,  wepe  forcibly  seized  and  tied,  alter*  a 
severe  struggle,  and  were  carried  before  a  justice  of  the 
peace,  before  whom  the  defendant  preferred  agaii 
a  charge  of  stealing  his  nogs,  and  had  a  warrant  issued  for 
their  arrest  and  imprisonment;  and  he  then  proposed  to 
prove  the  proceedings  which  were  afterwards  hadunderthe 
warrant,  up  to  the  time  of  his  discharge.  The  court 
chid  .  because  the  affidavit  and  wan  ant  of 

arrest  were  not  produced;  and  after  the  plaint i fl  had 
closed  his  evidence,  (the  defendant  adducing  no  evidence,) 
the  court  excluded  from  the  jury,  as  irrelevant,  all  the 
evidence  which  the  plaintiff  had  introduced;  to  which 
several  rulings  of  the  court  the  plaintiff  excepted. 

The  sustaining  of  the  demurrer  to  the  complaint,  and 
the  rulings  of  the  court  on  the  evidence,  are  now  assigned 
as  error. 

J.    Keister,    for  the    appellant,  cited   Sturdevaut    v. 
5   Ala.    135;   R  igsdale  v.    How.  \  la.   62; 

I  v.  Furni  -.  19  Ala.  760, 

Baixe  &  NeSmith,  1   1   Chitty's  Pl< 

p.   184,  18;  Stalling 

man.  26  Ala.  300. 

•ONE,  .T. —[April    9,  1861.]— Tb  ount  in  the 

plaint  is  a  substantial  C  >rm  fur- 

nisbed  by  tl  .it  and  batti 

and  >unt  in  tl  »UH<  is  a 

form,  the  caption  ol  v. 
■ 

• '  i 
the  inquiry,  whether 

.  e.     We  hold,  thai  it  was 
ant  in  u 


o00  SUPREME  COURT 


Williams  v.  lvey. 


indicates  the  action  of  trespass,  (2  Chitty's  PI.  m.  p.  S57,) 
and  is  a  verv  inappropriate  designation  of  an  nction  on  the' 
case  for  a  malicious  prosecution. — 2  Chitty's  PL  in.  p.  GOO. 

—The  count  contains  no  words  descriptive  of  an 

arrest  under  process,   or  of  discharge  therefrom,  which 

are  essential  in  a  complaint  for  a  malicious  prosecution. 

'Ragsdale  v.  Bowles,  16  Ala.  62;  Sheppard  v.  Furniss, 

19  Ala.  760. 

In  the  two  cases  cited  supra,  from  16th  and  19th  Ala., 
the  declarations  contained  clearer  marks  of  the  action  for 
malicious  prosecution,  than  the  second  count  in  the  pres- 
ent complaint  does;  yet  this  court  ruled  each  of  those 
counts  to  he  in  trespass. 

In  the  trial  of  the  cause,  the  circuit  court  proceeded  on 
the  opinion,  that  the  second  count  in  the  complaint,  on 
which  the  trial  was  had,  was  a  count  in  case.  Hence, 
that  court  excluded  much  evidence  of  assault  and  battery, 
imprisonment  without  process,  &c,  which  was  legal  evi- 
dence in  an  action  of  trespass  vi  ctarmis.  This  ruling  of 
the  court  being  based  on  an  erroneous  judgment  as  to  the 
form  of  action,  it  results  that  the  circuit  court  cried  in 
this  particular.  We  need  scarcely  add,  that  on  a  trial  in 
trespass  for  an  assault  and  battery,  and  for  false  imprison 
testimony  of  a  prosecution  under  warrant  and  arrest, 
which  are  not  void  on  their  face,  is  not  relevant. — Duck- 
worth v.  Johnson,  7  Ala.  578;  Crosby  v.  Hawthorn, 
25  Ala.  221. 

Reversed  and  remanded. 


OF  ALABAMA. 201 

Steele  &-  Burgess  v.  Townsend. 


STEELE  &  BURGESS  vs.  TOWNSEND. 

[ACTION    BY    COMMON*    CAUKIER    KOU    FREIGHT — RECOUPMENT    OF    DAMAGE  TO 

GOODS.] 

1.  Liability  of  common  carrier  for  negligence. — A  common  carrier  can- 
not limit  his  common- law  liability  by  any  general  notice,  but  may 
eo  limit  it  by  a  special  contract  with  the  shipper;  and  a  bill  of 
lading,  given  by  the  carrier  on  the  receipt  of  the  goods,  and  ac- 
cepted by  the  shipper,  is  a  special  contract  within  the  meaning  of 
this  rule  ;  yet  such  special  contract  cannot  be  pleaded  by  the  car- 
rier, as  an  exemption  from  liability  for  any  loss  or  damage  resulting 
from  his  own  negligence. 

2.  Relevancy  of  evidence  on  question  of  negligence  by  common  carrier. — 
In  an  action  against  a  common  carrier,  to  recover  damages  for  in- 
juries to  goods  shipped  by  sea,  (or  where  the  same  matter  is  relied 
on  as  a  defense  against  an  action  by  him  to  recover  freight,)  the 
fact  that  similar  goods,  shipped  by  sea  to  the  port  of  delivery, 
usually  arrived  safe  and  unirjjured,  would  be  admissible  evidence 
against  him,  as  a  circumstance  tending  to  show  that  any  damage 
by  breakage  was  the  result  of  negligence  on  his  part;  and  t  con- 
verso,  the  fact  that  such  goods  usually  arrived  in  a  damaged  and 
broken  condition,  is  admissible  evidence  for  him,  as  tending  to 
show  that  the  breakage  was  not  the  result  of  negligence  on  his 
part.  (Explaining  and  limiting  first  head-note  in  O'Grady  v.  Ju- 
ti&n,  $4  Ala.  88.) 

3.  Bunfan  of  proof  on  question  of  negligence  by  common  carrier. — Where 
the  bill  of  lading  contains  an  express  stipulation,  that  the  carrier 
is  ••  not  accountable  for  rust  or  breakage,"  proof  of  injury  to  the 

•i-  by  breakage  nevertheless  makes  out  a  prim  .se  of 

igence  against  him  ;  and  the  onus  is  then  on  him  to  show  the 
exercise  »f  duo  care  and  vigilance  on  his  part  to  prevent  the  in- 
jury :  unlets  the  nature  of  the  injury,  or  of  the  goods,  of  it~elf 
fun  idence  that  due  care  and  diligence  could  not  liave 

pn-\  en  ted  the  injury. 

Ai'PKAL  from  the  Circuit  Court  of  Mobile. 
Tried  before  the  Hon.  C.  W.  Rapier. 

This  action  wee  brought  by  the  appell<  cover  of 

the  appellants  ?SJ  32,  "for  freight,  primage  and  aver- 
U 


SUPKEME  COURT 


&  Burgess  v.  Townsend'. 


due  from  said  defendants  to  plaintiff,  upon,  for,  and 
t  oi'  the  conveyance  of  divers  goods,  merchandize 
and  on  board  the  plaintiff's  schooner  R.W.Tull, 

from  the  port  of  Philadelphia  to  the  port  of  Mobile ;" 
and  the  complaint  alsq  contained  a  count  for  work  and 
labor,  and  a  count  on  an,  account  stated.     The  defendants 

ded,  "in  short  by  consent,  payment,  set-off,  and  i 
assumpsit."     On  the  trial,  as  the  bill  of  exceptions  shows, 
the  plaintiff  read ^in  evidence  the  bills  of  lading-  for 
goods,  which   contained  a  clause  in  these  words,  "Kot 
accountable  for  rust  or  breakage  ;"  aud  proved  the  d 
ery  of  the  goods  to  the  defendants  in  Mobile,  and  the 
value  of  the  freight.     The  goods  consisted  of  stoves,  ket- 

pots,  pans,  &c.  "The  plaintiff  introduced  evidence, 
also,  that  the  goods  were  well  stowed,  and  were  not  broken 
or  damaged  in  discharging  them,  aud  that  proper  care 
and  skill  were  employed  in  discharging  them  from  the 
vessel  ;  also,  that  his  witnesses  had  never  seen  like  goods 
I.  The  defendants'  evidence  tended  t©  show, 
that  the  cast-iron  ware,  stoves,  &c.,  were  much  broken 
upon  the  vessel,  and  upon  the  wharf,  and  before  the  de- 

y  to  the  defendant's  drays;  that  the  breakage  of  the 
good1-  was  equal  tto  the  amount  of  the  freight  claimed; 
and  that  some  of  the    br  .  as  appeared  by  the  frac- 

ttfres,  ery  recent,  and  seemed  as  if  it  had  been  done 

within  an  hour.  One  witness,  who  had  much  experience 
in   the   business  of    receiving   like   wares  shipped  from 

hern   ports,  testified,  that  he  had   never  seen  a  ship- 

t  of  sto'  afljy  broken;  while  other  witne 

i.  that  there  was  not  more  break- 

than  usual  in  such   shipments.     The  plaintiff  of. 

that  shipments  of  east-iron 

hollow  wai    .  g  to  Mobile 

upon    vessels  by  sea,   wore  usually  in   a   damaged   and 

en   condition  on  their  arrival.     The  defendants  ob- 
jected  to  this   evidence,  and   excepted  to  its   admission 

inst  their  objection.  The  plaintiff  offered  evidence, 
also,  without  objection,  to  show  that  stoves  were  espe- 
cially brittle,  and  liable  to  damage  aud  breakage.;  and  it 


OF  ALABAMA.  203 


Steele  &  Burgess  v.  Townsend. 

was  also  proved,  that  such  wares,  unless  careful])'  han- 
dled, were  liable  to  break,  no  matter  how  well  stowed. 
It  was  in  evidence,  also,  that  the  plaintiff  was  master  of 
the  vessel,  a  common  carrier,  on  which  the  goods  were 
shipped;  but  there  was  no  evidence  to  show  any  sj 
contract  for  the  carriage  of  the  goods,  other  than  the  bills 
of  lading,  which  were  admitted  to  be  genuine." 

"The  court  thereupon  charged  the  jury,  (among  other 
things,)  that  if  the  goods  mentioned  in  the  bills  of  lading 
were  of  i  brittle  nature,  and  very  liable  to  rust  and  i 
ago  in  the   transportation   and  handling,  then  the  excep- 
tion in  the  bills  of  lading,   'not  accountable  for  n 
breakage,'  was,   to  some   extent,   valid   in   favor  of  the 
plaintiff:  that,  notwithstanding  that  clause  in  the  bills  of 
lading,  the  plaintiff  was  bound  to  use  the  highest  d*< 
of  diligence,   according  to   the   nature  of  the  goods,   to 
avoid  damage  to  them  ;  but,  that  if,  after  using  such  dili- 
gence, and   taking  the  greatest  care,  they  were   broken 
without   any   neglect  or  want  of  care  on   his   part,  then, 
under  his  bills  of  lading,  he  would  not  be  liable  in  dan 
for  such  breakage,   nor  would  the  same  be  a  defense  or 
to  his  right  to  recover  freight. 
"The   defendants   excepted  to  this  charge,   and,    . 
asked  the  court  to  charge   the  jury — '1st,   that  if  there 

no  other  evidence  of  a  special  contract  or  agree; 
than  the  words  'not  accountable  for  rust  or  breakage'  in 
the  bills  of  lading,  these  words  did  not  show  such  ;: 
mtract  trrier  and  the  shipper  .  ■  ■  ' 

limit  the  responsibility  of  the  former  as  to  break 
that  if  tl  .11  good   order  when   re 

plaintiff    in    Philadelphia,   and   in    bad    order    ' 
landed  in  Mobile,  the  plaiatifl  could  only  dischai 
self  by  showing  that  he  had  not  been  negligent,  and  had 

•  •<•  which  the  nature  of  the  artn 
from  the  time  he  received  them  in  good  order  in  i 
til    he  delivered  them   to   t! 
The    court    refused  to  give   I 

to  their 
court  did  give  the  second   cl 


SUPREME  COURT 

e  &  Burgees  v.  Townscnd. 


word  11$  before  the  words  bad  order ;  to  which  qual- 

ification the  defendant  also  excepted." 

The  several  raliugs  of  the  court  to  which,  as  above 
stated,  exceptions  were  reserved,  are  now  assigned  as 
error. 

R.  B.  Armistead,  for  appellants. — 1.  The  circuit  court 
erred  in  the  admission  of  the  evidence  excepted  to. 
O'Grady  v.  Julian,  34  Ala.  88;  Gilmer  v.  City  Council, 
26  Ala.  665;  Hubbard  v.  Railroad  Co.,  39  Maine,  506, 
and  cases  cited. 

2.  It  has  been  generally  held  in  this  country,  that  a 
common  carrier  cannot  limit  his  responsibility  by  a  gen- 
eral  notice,   but  may  so  limit  it   by  a  special   contract. 

1  Smith's  Leading  Cases,  325-6;  1  Parsons  on  Maritime 
Law,  177;  10  Wendell,  23-J  ;  9  Watts,  87;  5  Rawle,  179; 
G  How.  U.  S.  344-82  ;  2  Kelly,  349  ;  16  B.  Monroe,  643; . 

2  Kent's  Com.  (9th  ed.)  820,  and  note.  The  insertion  of 
a  particular  clause  in  the  bill  of  lading,  which  is  the  act 
of  the  carrier  himself,  docs  not  amount  to  a  special  con- 
tract, unless  the  assent  of  the  shipper  is  clearly  shown. 
1  Newberry's  Adra.  464;  6  Johns.  170-80;  6  How.  382. 

3.  If  the  carrier  received  the  goods  in  good  order,  and 
delivered  them  in  bad  order,  the  onus  was  on  him  to  ex- 
cuse himself  by  proof  of  due  care  and  diligence. — 1  New- 
berry's Adm.  464,  505;  9  Rich.  201  ;  12  Howard,  272-80. 

A.  R.  Manning,  contra, — 1.  A  common  carrier  may,  by 
special  contract  with  the  shipper,  limit  his  responsibility; 
and  the  bill  of  lading  is  the  proper  evidence  of  such  spe- 
cial contract.— Angell  on  Carriers,  §§  220,  221,  223,  225, 
23",  15ft  166;  EdwardB  oq  Bailments,  468;  6  How.  U. 
S.  382;  1  Kernan,  486,  491-2;  4  Sandf.  141;  4  Taun- 
ton, 126:  6  Porter,  131;  31  Ala.  506. 

2.  It  being  shown  that  the  damage  to  the  goods  resulted 
from  the  cause  specially  excepted  the  emus  is  on  the  ship- 
per to  show  negligence  on  the  part  of  the  carrier. — An- 
gell on  Carriers,  §§  61,  276;  Story  on  Bailments,  §  573; 
5  B.  &  Cr.  326;  HMetcalf,  461;  28  Ala.  412;  34  Ala.  174. 


OF  ALABAMA.  205 


Steele  &  Burgess  v.  Townsend. 


8.  The  evidence  objected  to  was  relevant  and  proper. 
Donnell  v.  Jones,  17  Ala.  695;  Ingram  v.  Lawson, 
37  Eug.  Com.  L.  350. 

R.  W.  WALKER,  J.— [March  1st,  18G1.]— 1.  Whatever 
doubts  may  at  one  time  have  been  entertained  on  the 
subject,  it  is  now  well  settled,  that,  although  a  common 
carrier  cannot  limit  the  liability  which  the  common  law 
devolves  on  him  by  any  general  notice,  he  may  do  so  by 
special  contract  with  the  shipper. — Dorr  v.  N.  J.  Steam 
Nav.  Co.,  1  Kornan,  490-91;  S. C.,  4  Sandf.  Sup.  Ct. 
R.  111-2;  N.  J.  Steam  Nav.  Co.  v.  Merchants'  Bank, 
6  Howard,  382;  Ang.  Carriers,  §§  220,   221,  225,238; 

1  Parsons  on  Contr.  203-4.  And  it  seems  to  be  considered, 
that  a  bill  of  lading,  given  bj"  the  carrier  on  receipt  of 
the  goods,  and  accepted  by  the  shipper,  is  a  special  con- 
tract between  the  parties,  within  the  meaning  of  this 
rule. — Dorr  v.  N.  J.  Steam  Nav.  Co.,  1  Kernan,  486,  491 ; 
Edwards    on    Bailments,    468  ;     Swindler    v.    Ililliard, 

2  Richardson,  303;  Story  on  Bailments,  §  550.  Yet 
such  contract,  limiting  his  common-law  responsibility, 
cannot  be  pleaded  by  the  carrier  as  an  exemption  for  any 

Or  damage  resulting  from  his  own  nesrlio;ence. — X.J. 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6  Howard,  144; 
D«»rr  v.  Steam  Nav.  Co.,  4  Sandf.  136;  Swindler  v.  Ilil- 
liard,  2  Rich.  L.  286;  Baker  v.  Brinson,  9  Rich.  L.  201; 
Davidson  v.  Graham,  2  Ohio  St.  R.  131;  Graham  v. 
Davis,  4  Ohio  St.  R.  362;  Merriman  v.  Brig  Mary  Queen, 
1  Newb.  Adm.  R.  464;  1  Parsons'  Mar.  L.  179,  note. 

-.   A-  the  exception   contained  in  the  contract  did  not 
have  the  effect  of  relieving  the  plaintiff  from  liability  for 
any  "breakage"  whieh  was   the  result  of  his  peglig< 
it  follows,  that  evidence  tending  to  show  that  the  br« 
age  complained  of  was  not  the  result  of  the   plaintiff's 
liegligen  admissible  in  his  behalf;  and  we  hold, 

that,  |',.r  thifl  purpose,  it  was  competent  for  the  plaintiff 
to  show,  that  articles  similar  to  those  s }»<■<■  i  1 D •  1 1  in  the  bill 
of  lading,  coming  to  Mobile  upon  vessels  b(  frere 

usually  in  a  damaged  and  broken  condition  on  their  an i- 


SUPREME  COURT 


.  Townsend. 


articles,  when  shipped  by  sea,  usually  arrived 

,:s  would  be  a  circumstance  tending  to  show 

the  -'breakage,"  when  any  did  occur,  was  the  result 

jence  on   the  part  of  the  carrier.     The  contrary 

|         f  would    have  a  contrary  tendency. — See  Ingram   v. 

!  .  37  Eug.  Coram.  L.  R.  350-1;  Donnell  v.  Jon.?, 

17  AJa,  : 

Th  ion    of    this    court   in    O'Grady   v.    Julian, 

•is  relied   on    by   the  counsel  for  appellant, 
as  in  conflict  with  the  opinion  here  expressed.     It  is  pos- 
sible  that,  in  the   case  just   cited,   the   court   may  have 
1  an  improper  construction  upon  the  language  of  the 
bill   ■  ; 'lions.     But  the    evidence  which   was  there 

to  be  inadmissible,  was  understood  by  the  court  as 
i:)Lr  to  the  usual  profits  made  by  Jar  establish* 

ments  in  the  neighborhood,  and   not  as  referring  to  the 
<  >f  profit  realized  by  similar  cstablish- 

the  neighborhood.     The   decision  was  intended 
to  apply,    and   must   be  confined,  to  cases  in  which  it  is 
I  toprove  the  profits  of  particular  establishra 

i   lake   individual   instances,   and    prove    the 

itting  which 
o  nullify  the  issues  indefinitely. 
The  difficult  point  in  the  en  upon  the  charge 

which  v  i  by  the  defendants,  and  which  the  court 

In:         •  ements,  limiting  the  carrier's 

ility,  Nelson, .'.,  in  delivering  the  opinion  inNew. 
m  Navr.   Co.  v.  M  ts'   Bank,  (6  Howard 

U.  S.  this  langirage:  "The  owner  of  goods,  by 

into   the  contract,  virtually  agrees  that,  in 
to  the  particular  transaction,   the  carrier  is  not  re- 
in the  exercise  of  his  public  employment,  but 
as  a  person  who  incurs  no  responsibility  beyond 

that  ilee  lor  hire,  and  answerable  only  for  miscon- 

i  Sandf.  Sup.  C.  R.  145; 
1     '     nan,   !•'■>.     And  it  has   been    held  on  several   occa- 
is,  that,  altho  al  contract,  qualifying  a  car- 

rier's  responsibility,  does   not  exempt  him  from  liability 


OF  ALABAMA.  20T 


Steele  &  Burgess  v.  Tow, 


for  loss  resulting  from  his  negligence;  yet  that,  in 

.  the  burden  of  proving  negligence  is  on  the  ship 

Authorities  supra;  Clark  v.   Barnwell,   12    Howard    U. 

Hunt  v.  The  Cleavoland,  G  McLean,  26;  8.  0., 

1  Newb.   222-3;  Brig.  Mary   Queen,  1  Xewb.   404;  see 

1  Parsons'  Mar.  Law,  150-1  ;  Aug.  Carr.  §§  61,  276. 

On  the  other  hand,  and  in  eases  in  which  the  question 

\ed  the  most  thorough  consideration,  it  has  been  de- 

l,  that  where  there  is  a  special   contract,  limitio     the 

carrier's  responsibility,  the  onus  of  showing,  not  only  that 

cause  of  the   loss  was  within  the  terms  of  th 
tiou,  but  also  that  there  was  no  negligence,  is  on  the  car- 
rier.— Swindler  v.  Ililliard,  2  Rich.   L.  K,  286  ;  Bali 
Brinson,  9  Rich.  L.  201;  Davidson  y!  Graham,  2  Ohio 
:;.  L31;  Graham  v.  Davis,  4  Ohio  St.  II.  302;  Can 
mboy  R.  R.   Co.  v.  Baldauf,  10  Penns.  St.  1:. 

.  '     .     219. 
Lthout  adopting  this  rule  in  the  terms  in  which 
here  we  think  it  is  so  far  true  in  the  pre* 

an  injury  by   "breakage"   to  the  articles  shipp 
not  brought  within  the  terms  of  the  exception,  un! 

town  that  the  "brealqage"  was  not  the  result  of 
the  negligence  of  the  carrier.     In  other  words,  the  < 
tion  includes  only  such   break:  are  and  dili 

could   not  prevent;  and  the  injury  is  not  with": 
ceplion,  until  it  is  shown  that  it  occurred  notwitl 
cise  of  such  care  and  diligence.     It  is  no 
irate  to  say,  that  the  onus  is  on  the  carrier  to 
only  that  th<  of  loss  was  within  the  exception, 

but  also  that  he  exercised  due  care.     The  correct  vi 
that  th  not  brought  within  the  exception,  u 

it  appears  to  have  occurred  i  the 

part  of  the  carrier;  and,  as  it  is  for   the   carrier 
himself  within  the  exception-,  he  mast 

injury  \ 

It  i  .  by  the  i 

ii  found  in  tbie  bill 
ter  i 


208  SUPRKMK  COURT 

— — — — — — — ^— — — — 1  ■     .-» 

ele  ft  Burgess  v.  Townsend. 

•da  still  remains,  notwithstanding  this  feature  of 
the  contract,  a  common  carrier:  his  liability  only,  to  the 
•it  of  the  exception,  is  diminished.  "In  all  things 
.  the  very  same  principles  apply.  Care  and  diligence 
arc  still  elements  of  the  contract,  and  'strict  proof  is 
properly  required,  before  any  exemption  may  be  claimed." 
9  Rich.  203. 

In  most  cases  of  bailment,  the  bailee  is  chargeable,  uot 
by  the  delivery  of  the  goods,  but  by  reason  of  negligence. 
Hence,  in  the  case  of  ordinary  bailments,  the  general  rule 
is,  that  to  hold  the  bailee  responsible,  negligence  must  be 
alleged  and  proved;  though  some  courts  have  considered 
that  the  bailee  should  be  held  to  proof  of  the  facts  and 
circumstances  under  which  the  loss  occurred. — Clarke  v. 
Spence,  10  Watts'  R.  335;  Logan  v.  Mathews,  6  Barr,  417; 
Swindler  v.  Ililliard,  2  Rich.  L.  305-6.  But  in  relation 
to  common  carriers,  the  rule  is,  that,  in  all  cases  of  lo3S, 
the  onus  probandi  is  on  the  carrier  to  exempt  himself  from 
liability;  for  prima  facie,  the  law  imposes  the  obligation 
of  safety  upon  him.  Consequently,  the  owner  is  bound 
to  prove  no  more  than  that  the  goods  were  delivered  to 
the  carrier,  and  that  the  latter  had  not  delivered  them  to 
the  consignee.  These  facts  constitute  prima-facie  evidence 
of  negligence  or  misconduct. — Angell  Carr.  §  202;  Story 
Bailm.  §  529. 

By  the  common  law,  the  carrier  is  responsible  for  all 
s,  except  6uch  as  result  from  the  act  of  God,  or  the 
pubiic  enemy.  Hence,  his  liability  is  not  confined  to  such 
is  as  are  the  consequences  of  his  own  negligence,  or 
want  of  skill.  He  is  liable  for  losses  by  accident,'  mis- 
take, and  numerous  unavoidable  occurrences,  not  falling 
under  the  head  of  acts  of  God  or  the  public  enemy,  and 
against  which  it  is  not  within  the  reach  of  human  vigil- 
ance or  foresight  to  provide.  For  losses  occasioned  by 
the  wrongful  acts  of  third  persons,  by  accidental  fires,  by 
robbery,  or  by  the  violence  of  mobs,  which  neither  the 
carrier  nor  his  agents  can  resist,  or  by  any  vigilance  avoid, 
he  is  responsible.— 1  Smith's  L.  C.  315;  2  Ohio  St.  R. 
137.     The  liabilities  of  a  common   carrier  are  thus  dis- 


OF  ALABAMA.  209 


Stole  &,  Burgess  v.  Townsend. 


tinguished  into  two  classes:  the  one,  a  liability  for  losses 
by  neglect,  which  is  the  liability  of  a  bailee;  the  other, 
a  liability  for  losses  by  accident,  or  other  unavoidable  oc- 
currence, which  is  the  liability  of  an  insurer.  In  Uiley 
v.  Home,  (oBing.  R.  217/j  Best,  C.  J.,  uses  this  language: 
"When  goods  are  delivered  to  a  carrier,  they  arc  usuall}^ 
no  longer  under  the  eye  of  the  owner;  he  seldom  follows, 
or  sends  any  servant  with  them,  to  the  place  of  their  des- 
tination. If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or 
stolen  by  them,  or  by  thieves  in  collusion  with  them,  the 
owner  would  be  unable  to  prove  either  of  these  causes  of 
loss.  His  witnesses  must  be  the  carrier's  servants;  and 
they,  knowing  that  they  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves.  To  give  due  secu- 
rity to  property,  the  law  has  therefore  added  to  that  re- 
sponsibility of  a  carrier  which  immediately  arises  out  of 
his  contract  to  carry  for  a  reward — namely,  that  of  taking 
all  reasonable  core  of  it — the  responsibility  of  an  insurer. 
From  his  liability  as  an  insurer,  the  carrier  is  only  to  be 
relieved  by  two  things,  both  so  well  known  to  all  the 
country  when  they  happen,  that  no  person  would  be  so 
rash  as  to  attempt  to  prove  that  they  had  happened  when 
they  had  not;  namely,  the  act  of  God,  and  of  the  king's 
enemies." 

On  grounds  of  public  policy,  the  courts  have  manifested 
a  disposition  to  construe  any  new  exceptions  to  the  lia- 
bility of  a  common  carrier,  strictly  against  him. — Atwood 
v.  Transportation  Company,  9  Watts,  87.     Without  the 

ption,  the  carrier  would  be  liable  as  an  insurer,  for  a 
I         from  the  specified  cause;    and  the  only  legitimate 

:  of  the  exception  is,  to  relieve  the  carrier  from  this 
extraordinary  responsibility  for  a  loss  winch  could  not 
have  been  prevented  by  proper  care  and  diligence  on  his 
part.  When,  therefore,  a  carrier,  as  in  this  case,  pro- 
ountability  for  "rust  or  breakage,"  the 
proper  construct  inn  of  the  exception  is,  that  the  '.wrier 
is  not  to  be  held  liable  as  an  insurer  for  "rust  or  break- 
age" which  occurs  without  id  his  part)  but 


210  SUPREME  COURT 

e  &  Burgess  v.  Townsend. 


he  remains,  as  before,  responsible  for  any  injury  of 
the  kind  mentioned,  if  .caused  by  bis  failure  to  exercise 
the  degree  of  care  which  the  law  demands  of  every  com- 
mon carrier,  in  respect  of  the  goods  committed  to  him. 
The  makirg  of  such  exception  does  not  change  the  char- 
acter of  the  employment,  or  the  rules  ot  evidence  before 
applicable  to  the  subject.  Hence,  a  prima-facie  case  of 
negligence  is  made  out  against  the  carrier,  by  showing 
that  the  goods  were  delivered  to  him,  and  that  he  has 
cither  not  delivered  them  at  all,  or  has  delivered  them  in 
an  injured  condition. 

Where  a  carrier  seeks  to  bring  a  loss  within  the  com- 
mon-law exception  of  "an  act  of  God,"  he  cannot  throw 
upon  the  employer  the  burden  of  proving  or  inferring 
negligence  or  defective  means  in  the  carrier,  until  he  has 
shown  the  intervention  of  such  an  extraordinary,  violent 
and  destructive  agent,  as  by  its  very  nature  raises  a  pre- 
sumption that  no  human  means  could  resist-its  effect. — 
1  Smith's  L.  C.  (oth  Am.  cd.)  318;  Coosa  R,  Co.  v.  Bar- 
clay, 30  Ala.  128-9;  Steele  v.  McTyer,  31  Ala.  676.  "The 
true  view  is,  not  that  the  carrier  discharges  his  liability 
by  showing  an  act  of  God,  and  is  then  responsible,  as  an 
ordinary  agent,  for  negligence;  but  that  the  intervention 
of  negligence  breaks  the  carrier's  line  of  defense,  by 
showing  that  the  injury  or  loss  was  not  directly  caused  by 
the  act  of  God,  or,  more  correctly  speaking,  was  not  the 
act  of  God."— 1  Smith's  L.  C.  31!). 

In  like  manner,  the  exception  of  "perils  of  the  sea," 
and  "dangers  of  the  river,"  means  such  as  cannot  be 
avoided  by  the  exercise  of  that  discretion  and  care,  which 
the  law  requires  of  common  carriers;  and  to  ascertain 
whether  a  loss  falls  within  the  exception,  it  must  be  in- 
quired, whether  the  accident  could  have  been  prevented 
by  the  exercise  of  proper  foresight  and  diligence. — 
1  Smith's  L.   C.   310;  Williams  v.  Branson,  1  Murphy, 

417;  Marsh  &  Houren  v.  Blithe,  1  N".  &  McC.  170;  Jones 
v.  Pitcher,  3  St.  &  P.  13:;,  171.  Thus,  where  goods  were 
received  on  board  a  steamboat,  and  the  bill  of  lading 
contained  an  exception  of  "dangers  of  the  river;"  and 


OF  ALABAMA.  211 


Steele  &  Burgess  v.  Townsend. 


the  loss  was  occasioned  by  the  boat's  striking  on  a  sunk- 
en rock;  it  was  lie  Id  incumbent  on  the  carrier  to  prove 
that  due  diligence  and  proper  skill  were  used  to  avoid 
the  accident.— Whiteside  v.  Russell,  8  W.  &  S.  44. 

The  same"  principle' must  apply  to  the  present  except 
tion.     The  proof  of  injury  makes  a prima-facie  ease  of  neg- 
ligence against  the  carrier;  and  he  does  not  bring  th 
jury  within  the  exception,  until  he  shows  the  exercise  of 
due  vigilance  on  his  part  to  prevent  the  injury  ; 
indeed^the  nature  of  the  injury,  or  of  the  property,  be 
such  as  to  furnish,  of  itself,  evidence  that  due  car. 
diligence  could  not  have  prevented  the  injury. 

There  is  no  hardship  in  such  a  rule,  and  many 

na  unite  to  commend  it  to  our  approval.  It  is  of  the 
utmost  importance  to  the  commerce  of  the  country,  that 
carriers  should  be  held  to  a  strict  accountability.  On  this 
subject,  we  concur  in  the  remark  of  Chief-Justice  Gibson) 
that,  "though  it  is,  perhaps,  too  late  to  say,  that  a  currier 
may  not  accept  his  charge  in  special  terms,  it  is  not  too 
late  to  say,  that  the  policy  which  dictated  the  rule  of  the 
common  law  requires  that  exceptions  to  it  be  strictly  in- 
terpreted, and  that  it  is  bis  duty  to  bring  his  case  strictly 
within  them."— 9  Watts,  87.  This  is  especially  so  in 
reference  to  exceptions  inserted  in  bills  of  lading.  Goods 

unmonly  sent  by  the  owner  to  the  carrier's  pla< 
business,  where  they  are  received,  and  the  bill  of  lading 
made  out  by  the  carrier,  or  his  clerk.     It  is  often  not 
seen  by  the  owner,  until  it  is  too  late  to  insist  on  a  chi 
in  t'  c  considerations  have  indu 

emitc  nt  judge  to  say,  that  the  better  rule,  perhaps,  would 
'!  Bach  provisions  in  bills  of  lading   as  void, 
unless  inserted  by  the  express  consent  of  the  employer. 
Black,  C.  J.,  in  Ghouteauxv.  Leach,  18  Penn.  288. 

of  the  introduction  of  steamboats  and  rail- 
that  common  carriers   have,  to   a  great   extent, 
.'•lusive  posse-   imi  <»f  the  public  thoroughly- 
the  country,  and   have  it   in  their  power  to  impose  their 
own  terms  u]  ners  of  goods,  who,  ind 

it  to  employ  them.     The  owner 


212  SUPREME  COURT  

McGehee  v.  Mahone. 

litional  bill  of  lading,  because  he  cannot,  well  help  it. 
He  must  have  his  goods  carried,  and  lie  sees  that  the.  car- 
rier will  refuse  to  take  them,  unless  the  prescribed  terms 
are  accepted.  The  owner  seldom  accompanies  his  prop- 
erty, and,  in  case  of  loss  or  injury,  however  gross  the 
negligence  maybe,  is  unable  to  prove  it,  without  relying 
upon  the  servants  of  the  carrier, — the  very  persons,  gen- 
erally, by  whose  negligence  (if  there  was  negligence)  the 
goods  have  been  lost;  whose  feelings,  wishes,  and  inter- 
ests, are  all  against  the  owner,  and  who  are,  as  a  general 
rule,  only  too  ready  to  exculpate  themselves  and  their 
employer.  Of  the  manner  of  the  loss,  the  owner  is,  gen- 
eral ly.jjjenti rely  ignorant,  while  the  carrier  and  his  ser- 
vants may  be  reasonably  supposed  to  be  fully  advised  in 
regard  to  it;  and  "that  is  a  sound  rule,  which  devolves 
the  onus  on  him  who  best  knows  what  the  facts  are." 

The  result  of  what  has  been  said  is,  that  if  the  goods 
were  in  good  order  when  received  by  the  plaintiff  in 
Philadelphia,  and  in  bad  order  from  "  breakage"  when 
delivered  in  Mobile,  it  devolved  upon  the  carrier  to  show, 
that  proper  diligence  and  skill  were  exercised  to  prevent 
the  injury;  unless,  as  before  remarked,  it  appears  that 
the  nature  of  the  injury,  or  of  the  property,  is  such  as  to 
show,  of  itself,  that  due  care  and  diligence  could  not  have 
prevented  the  injury.  The  charge  asked  should  have 
been  given. 

Judgment  reversed,  and  cause  remanded. 


McGEIIivi;  vs.  MAHONE. 


[  DETINUE  KOU  SLAVES,] 


1.  Admissibility  of  subsequent  declarations  explanatory  of  admissions. — 
Plaintiff  having  proved,  that  the  slaves  in  controversy  were  not 
included  by  the  defendant  in  the  schedule  of  his  taxable  property, 


OF  ALABAMA.  213 


McGehee  v.  Mahone. 


which  was  rendered  to  the  assessor  on  oath,. and  were  included,  in 
the  schedule  of  the  plaintiff's  property,  which  was  given  in  at  the 
same  time  hy  his  son,  in  the  defendant's  presence;  the  defendant 
cannot  be  allowed,  for  the  purpose  of  rebutting  the  presumption 
arising  from  this  evidence,  to  prove  that  he  afterwards  corrected 
his  schedule,  and  what  reasons  he  then  assigned  to  the  assessor  for 
his  former  conduct ;  ami  t lie  fact  that,  when  first  giving  in  his 
schedule,  "he  asked  leave  of  the  assessor  to  correct  any  mistake, 
and  said  something  about  getting  advice,"  does  not  affect  tho 
principle. 

2.  Admissibility  of  party' s  declarations  as  evidence  for  him. — The  dec- 
larations of  a  party  are,  prima  facie,  not  admissible  evidence  for 
him;  and  the  fact  that  a  witness,  when  cross-examined,  "for  the 
sole  purpose  of  contradicting  him,"  touching  his  own  declarations 
at  a  particular  time  and  place,  states  -'that  he  cannot  answer  the 
question  without  giving  thedeelarations  of  the  defendant  nvuleat 
the  same  time,"  is  not,  of  itself,  sufficient  to  show  error  in  the  ex- 
clusion of  the  defendant's  declarations. 

3.  Bailor's  right  to  terminate  bailment. — If  the  bailor  of  slaves,  when 
delivering  possession  to  the  bailee,  declares  that  he  gives  or  lends 
them  to  her,  "  but  subject  to  his  call  at  any  time,"  his  right  to  ter- 
minate tin'  bailment,  and  reclaim  the  slaves,  is  not  necessarily 
limited  to  the  life-time  of  the  bailee. 

Appeal  from  the  Circuit  Court  of  Butler. 
Tried  before  the  lion  Nat.  Cook. 

This  action   was  brought  by  Thomas  Mahone,  against 
Augustus  McGehee,  to  recover  several  slaves,   together 
with  damages  for  their  detention.     It  appeared  from  the 
evidence  on  the  trial,  that  the  slaves  had  once  belonged 
to  the  plaintiff,  and  had  been   either  given  or  loaned  hy 
him  to  his  daughter,  who  married  the  defendant  in  April, 
.  and  died  about  one  year  afterwards,  leaving  an  in- 
fant child,  who  also  died  before  the  commencement  of 
lit.     The  defendant's  evidence   conduced    to   show, 
that  the  plaintiff  gave  the  slaves  to  his  daughter,  by  parol, 
time  before  her  marriage,  and  afterwards  retained 
them,  under  a  contract  of  hiring,  until  the   close  of  the 
1856,  when  he  sen!  them  to  the  defendant's  house; 

While  the  plaintiff's  evidence  tended  to  show,  that  he  de- 
livered tin'  slaves  t<>  the  defendant,  alter  his  marriage  with 
plaintiff's  daughter,  under  a  loan   or  bailment,  and  de- 


Mc<  rehee  v.  Sfahone. 


the  time,  "that  he  gave  or  loaned  them  to  de- 
mbject  to  his  call  at  any  time." 

.  that,  after  the  death  of  the  de- 
wife,  his  son  and  the  defendant  went  t< 
to  th  !',  to  give   in  their  taxes,  and  had  some 

conversation  as  to  giving  in  the  slavi 

cont;  that  the  defendaut  did  not  give  iu  said  ne- 

to  the   :  his  property,  and  swore  to  his 

lode  of  taxable  property;  that  said  negroea  von 

in  at  the  same  time  by  plaint,  .  in  defendant's  ] 

,  as  the  property  of  the  plaintiff;  and  that  the 
fendant  remarked,  when  he  gave  in  his  list,  that  he 

ided  to  give  in  said  negroes,  but  that  plaiuti 
had  relieved  him  of  that.     It  was  further  shown,  that 

md  plaintiff's   son   then   left  the  assessor,  and 
went  did  nol  again  return  together  to  thi 

r.     It  was  shown,   however,   that  the  d 

;  his  taxes,  asked  leave  of  t; 
6or  t'»  correct  auy   I  mcthing  ah 

:'    the  presumption  arising  from 

.  the 
I  to  prove,  by  I  .  that  on 

e  in    his  taxes,  hut  on* another  occasion, 
K-liat,  by  giving  in  said  e  b  liis 

own.     T  '1    this  evidence,  at  I 

and   the  defendant  excepted.     The 

i  prove,  for  the  purpi  •  Ibut- 

ptiou,  that  he  said  to  th 
tiff  not  being  present,)  that  the 
did   not    give   in  said  negroes  in  the 

lis  list,  was,   thai 
i  had  heard  plain 
married  the  defendant,  that  said 
..      .  a  id 
lie    had    - 
and  on    had     tal    d    what    plaintiff  had 

I  to  permit    this 
■id  the  defendant  ed." 

"The  plaintiff  introduced  one  William  F.  Mahone  i 


OF  ALABAMA.  215 


bee  v.  Mai 


witness,  who  testified  to   declarations  of  the  defendant, 
ftfter  the  death  of  his  wife,  as  to  the  ownership  of  the 
negroes,  and  in  disparagement  of*  his  title,  made  on 
the  i  iving  in  the  tax-list.     On  cross-examination 

of  said  witness,  and  for  the  sole  purpose  of  conti 
him,  the  defendant  proposed  to  ask  him,  what  he  (said 
witness)  had   said  to  one   Morrison,  at   said   Morrison's 
•,  three  or  four  days  after  the  tax-list  was 

pf  the  defendant  he  had  proved  on  the 
day  of  giving  in  their  taxes;  and  the  court  said.,  that  the 
question  might  he  asked.  The  witness  stated,  that  lie 
could  not  answer  the  question,  without  giving  the  decla- 
rations made  at  that  time  by  the  defendant,  who  was  pres- 
ent with  him  and  Morrison;  and  the  court  said,  that  the 
declarations  of  the  defendant  could  not  he  given  ;  to  which 
the  defendant  excepted." 

"The  defendant  asked  the  court  to  charge  the  jury,  that 

if  they  found,  from  the  evidence,  that  there  was  no  valid 

of  the    slaves    before    the  marriage    of   plaintiff's 

.liter  with  defendant;  and  that  the  plaintiff  said  to 

ndant,  at  the  time  the 

into  the  defendant's  possession,  that  he  gave  or  loaned 

ndant's fcwife,  but  subject  to  his  call   at  any 

;  and  that  he  never  did  call  for  them,  or  mal 

nt's 
plaintiff  could  not  recover  in  this  action." 
.  and  the 

Tl  ■  n    the  evidence,  and  the  re- 

the 


216  SUPREME  COURT 


Mo<  rehee  v.  Mahone. 


evidence  for  that  purpose,  the  declarations  of  the  defend- 
ant, constituting  a  part  of  the  same  conversation,  there- 
by became  competent  also.  The  declarations  of  defend- 
ant, in  such  case,  stand  on  the  same  footing  with  the 
declarations  of  third  persons,  which  are  always  received, 
though  mere  hearsay;  and  to  exclude  such  declarations, 
whelLer  made  by  a  party  or  by  a  third  person,  would,  in 
most  cases,  deny  the  right  to  impeach  a  wituess  by  proof 
of  contradictory  statements. 

D.  W.  Baine,  with  Goldthwaite,  Rice  &  Semple,  contra. 
1.  The  corrected  tax-list  was  the  best  evidence  to  prove 
the  correction,  and  should  have  been  produced,  or  its  ab- 
sence accounted  for,  before  the  same  fact  could  b?  proved 
by  the  assessor. — Smith  v.  Armistead,  7  Ala.  G98 ;  Cole 
v.  Spann,  13  Ala.  537;  Ware  v.  Roberson,  IS  Ala.  105. 

2.  The  defendant's  subsequent  declarations  to  the  as- 
sessor, formed  no  part  of  the  transaction  proved  by  the 
plaintiff,  and  were  not  made  in  the  plaintiff's  presence, 
Stewart  v.  Sherman,  5  Conn.  241;  Ogden  v.  Peters, 
15  Barboar,  562;  Roberts  v.  Trawick,22  Ala.  493;  Smith 
v.  Onreton,  31  Ala.  652.  That  the  defendant,  when  giv- 
ing in  his  tax-list,  asked  or  reserved  the  right  to  correct 
mistakes,  makes  no  difference  in  the  application  of  the 
principle;  he  had  the  right  to  correct  mistakes,  without 
such  reservation.  The  case  of  an  original  and  amended 
bill  in  chancery  is  analogous. — Pearsall  v.  McCartney, 
28  Ala.  110. 

3.  Tuc  proper  question  was  not  asked  to  impeach  the 
tritness  Mahone. — 1  Greenl.  Ev.  514.  If  the  question 
had  been  proper,  non  constat  that  the  defendant  was  in- 
jured by  the  ruling  of  the  court,  since  the  record  does 
not  show  that  the  declarations  of  the  witness  were  exclu* 
ded.  The  declarations  of  the  defendant  were,  at  least 
prima  f aoU,  incompetent  evidence  for  him;  and  it  was 
incumbent  on  him  to  show  some  special  circumstances 
which  justified  their  admission. 

A.  J.  WALKER,   C.  J.— [Feb.  15,  1861.]— A  party 


OF  ALABAMA. 217 

McGehee  v.  Mahbne. 


cannot  counteract  admissions,  proved  to  have  been  made 
by  him,  by  evidence  of  posterior  declarations,  made  on  a 
aifferent  occasion: — Peat-sail  v.  McCartney,  28  Ala*  110, 
126;  Roberts  v.  Trawiek,  22  #. 400-4W4;  Lee  v.  Hamil- 
ton, 3  lb.  529.  The  declarations,  the  exclusion  of  which 
is  the  subject  of  the  second  exception,  manifestly  fall 
within  this  rule;  and  were  properly  held  inadmissible. 

But  it  is  claimed  that  the  act,  for  the  rejection  of  the 
proof  of  which  the  defendant  made  the  first  exception 
named  in  the  bill  of  exceptions,  must  be  excluded  from 
the  operation  of  that  rule.  The  plaintiff  proved,  that 
defendant  was  present  when  the  plaintiff's  son  gave  in 
the  slaves  in  controversy,  to  the  tax-assessor,  as  the  taxa- 
ble property  of  the  plaintiff";  and  that  the  defendant  did 
not  include  the  slaves  in  the  list  of  taxable  property  ren- 
dered by  him.  It  appeared,  however,  that  on  that  occa- 
sion, the  defendant  said,  that  he  had  intended  to  give  in 
the  slaves  in  controversy  as  his  property, "but  plaintiff's 
son  had  relieved  him  of  that;  and,  also,  that  the  defend- 
ant asked  leave  of  the  assessor  to  correct  any  mistake, 
and  spoke  of  getting  advice.  The  defendant  proposed  to 
prove  that,  afterwards,  on  the  same  day,  he  gave  in  to 
the  assessor  the  said  slaves  as  his  taxable  property.  If 
the  proposed  evidence  ought  to  be  excepted  from  the 
iral  rule,  it  is  upon  the  ground,  that  the  defendant 
qualified  bis  conduct,  and  weakened  the  admission  to  be 
argued  from  it*  by  saying  that  he  had  intended  to  give 
in  th'.'  slaves  as  his  property,  but  was  relieved  of  it  by  the 
plaintiff's  son,  and  asking  leave  to  correct  any  mistake. 
Thai  the  defendant  so  qualified  and  explained  his  decla- 
ration- and  conduct  at  the  time,  as  to  greatly  lessen  the 
weight    ■>   tl  ien(   against  him  to  be  drawn  there- 

from, i    nnol  justify  him  in  giving  in  evidence  a  si 
quel  laratioQ,  adding  force  to  the  qualification 

or  explanation  already  made,  or  relieving  himself  from 
the  previous  admission.  The  defendant  obtained  thead- 
vantin;  ■  and  full  benefit  ..t  his  explanation  or  qualifica- 
tion, ii  ing  or  destroying  the  inflm  .  the 
m.  Tie-  fact  that  br  ;i~ke  1  leave  to  anv 
1/5 


218  SUPREME  COURT 


bee  v.  Mahone. 


.lid  not  entitle  him  to  prove  that  he  subsequently 
I  differently.  Every  complainant  in  chancery  tiles 
his  hill,  having  a  right  to  correct  mistakes  in  the  original 
bill  by  an  amendment;  yet  it  has  been  decided,  that  when 
an  original  bill  is  offered  in  evidence,  in  another  suit, 
against  the  complainant,  he  cannot  counteract  the  admis- 
sions of  the  original  bill,  by  introducing  the  amendment.1* 
Pearsall  v.  McCartney,  28  Ala.  110.  If  a  party  makes 
an  admission,  with  a  request  of  permission  to  correct  any 
mistake  in  the  admission,  the  jury  are  to  consider  the  ef- 
fect of  his  request  of  permission  to  correct  mistakes  in 
determining  the  weight  of  the  admission,  but  he  cannot 
be  allowed  to  prove  subsequent  declarations  or  acts,  for 
the  purpose  of  relieving  himself  of  the  force  of  the  ad- 
mission. 

[2.]  The  appellant,  for  the  purpose  of  discrediting  his 
adversary's  witness,  interrogated  him  as  to  declarations 
made  by  him  (the  witness)  at  a  designated  time  and  place, 
and  to  a  given  person.  The  witness  asserted,  that  he 
could  not  answer  the  question,  without  giving  the  decla- 
rations of  the  defendant,  who  was  present  at  the  time 
when  the  declarations  of  the  witness  were  made.  The 
court  said,  that  the  declarations  of  the  appellant  could 
not  be  given  in  evidence;  and  to  this  denial  by  the  court 
of  the  admissibility  of  the  appellant's  declarations  there 
was  an  exception.  It  is  clear,  that  the  appellant's  dec* 
i "lis  were,  prima  facie,  inadmissible  as  evidence  for 
him.  It  therefore  devolved  upon  him,  as  a  preliminary 
to  their  admission,  to  show  how  they  could  be  made  com- 
petent  evidence  by  other  facts. — Shields  &  Walker  v. 
Henry  &  Motf,  31  Ala.  53,  The  court  had  nothing  be- 
fore it,  tending  to  relieve  those  declarations  of  their  in- 
admissible character,  save  the  single  fact,  that  the  witness 
-aid  he  could  not  answer  the  question,  requiring  a  state- 
ment of  the  declarations  made  by  himself,  unless  he  also 
gave  the  declarations  made  by  the  appellant  on  the  same 
occasion.  It  might  have  been,  that  the  appellant's  dec- 
larations were  so  intermingled  and  connected  with  those1 
of  the  witness  in   the  same  conversation — for  example, 


OF  ALABAMA.  219 


MXtehoev.  Mahone. 


in  the  form  of  questions  by  one,  and  answers  by  the 
other — that  it  would  be  impossible  to  understand  the 
declarations  of  the  witness,  except  when  viewed  iu  con- 
nection with  those  of  the  appellant.  But  that  state  of 
things  is  not  satisfactorily  shown,  simply  by  the  state- 
ment of  the  witness,  that  he  could  not  give  his  own  dec- 
larations without  giving  the  defendant's.  The  court, 
which  is  the  judge  of  the  showing  preliminary  to  the  ad- 
mission of  evidence  prima  facie  illegal,  could  not  safely 
or  properly  act  upon  such  a  statement  of  the  witness. 
In  doing  so,  it  would  have  substituted  the  judgment  of 
the  witness  for  its  own,  upon  the  question,  whether  the 
declarations  of  the  appellant  and  the  witness  were  so 
connected  that  the  latter  would  be  unintelligible  without 
the  former.  Besides,  the  statement  of  the  witness,  giv- 
ing no  reason  why  he  could  not  give  his  own  declarations 
without  those  of  the  appellant,  was  of  such  ambiguous 
and  doubtful  character,  that  no  inference  of  the  requisite 
fact  could  be  safely  predicated  upon  it. — Scott  v.  Coxe, 
20  Ala.  294;  Humphreys  v.  Bradford,  32  Ala.  500.  U 
there  were  facts,  which  would  have  shown  the  admissi- 
bility of  the  declarations  iu  question,  they  should  have 
been  brought  to  the  notice  of  the  court/*  Upon  the  facts 
disclosed  by  the  bill  of  exceptions,  we  cannot  affirm  that 
the  court  erred  in  deciding  that  the  declarations  were  in- 
admissible. 

[3.]  There  was  no  error  in  the  refusal  to  charge  as 
requested  by  the  appellant.  If  the  plaintiff  accompanied 
the  delivery  of  the  negroes  with  flic  declaration,  "that 
hi'  gave  or  loaned  them  to  the  defendant's  wife,  hut.  sub- 
ject to  his  call  at  any  time,"  his  right  to  terminate  the 
bailment,  and  reclaim  the  negroes,  would  not  necessarily 
lie  restricted  to  the  life-time  of  the  bailee. 

Judgment  affirmed. 


SUPREME  COURT 


Williams  v.  ]  vcy. 


WILLIAMS  vs.  IVEY. 

[ACTION   For.  ASSAULT  AND    liATl'KKV   AND  FALSE   IMI'UISONM  KNT.] 

1.  Distinction  between  counts  in  trespass  and  case. — The  forms  of  com- 
plaint prescribed  in  the  Code,  (p.  554,)  ''for  assault  and  battery,"' 
and  "for  false  imprisonment,"  are  both  in  trespass-. 

2.  Aim  i, ii in:  .it  qf  c  rniplaint  after  demurrer  sustained. — Under  the  ( 

if  plaintiff  amend  his  complaint,  after  the  court  has  sus- 
tained a  demurrer  to  the  original,  and  proceeds  to  trial  on  the 
amended  complaint,  he  does  not  thereby  waive  his  right  to  assign 
as  error  the  .judgment  on  the  demurrer,  unless  the  record  shows- 
that,  in  consequence  of  the  amendment,  he  sustained  no  injury  by 
that  judgment.  (Overruling  Sheppardv.  Shelton,  34  Ala.  652,  and 
limiting  Slallings  v.  .A-  Ala.  300.  to  cases  commenced  be- 

fore the  Code.) 
2.  Error  without  injury  in  admission  and  subsequent  withdrawal  of  evi- 
rhe  ejrroneoue  admission  of  evidence,  which  is  afterwards 
•withdrawn  from  the  jury,  and  which  they  are  expressly  instructed 
the  court  nOl  to  regard  fur  any  purpose,  is,  at  most,  error  with- 
out injury. 

Ai'J'E\r,  from.  The  Circuit  Court  of  Lowndes. 
Tried  before  the  Hon.  Nat.  Cook. 

This  action  was  brought  by  Elijah  Williams,  against 
Samu-el  Evey,  to  recover  damages  for  an  assault  and  bat" 
tery,  and  for  false  imprisonment.  The  original  com- 
plaint contained  two  counts,  which  were  identical  with 
"I  Reason  Williams  against  Ivey,  page 
tustained  a  demurrer  to  the  com^ 
plaint,  for  a  misjoinder  of  counts;  holding,  that  the  first 
count  was  in  trespass,  and  the  second  in  case.  The 
plaintiff  then  amended  his  complaint,  by  striking  out  the 
first  count;  and  a  trial  was  had  on  issue  joined  on  the 
plea  of  not  guilty  to  the  second'eount.  During  the  trial, 
as  the  bill  of  exceptions  shows,  the  defendant  read  in 
evidence  the  deposition  of  one  Jordan.  The  plaintiff 
moved  the  court  to  suppress  the  answer  of  this  witness 

■ 


OF  ALABAMA.  221 


Williams  v.  Ivey. 


to  the  third  direct  interrogatory,  on  the  ground  that  it  was 
not  responsive  to  the  interrogatory,  and  reserved  an  excep- 
tion to  the  overruling  of  his  objection.  '•  After  the  ar- 
gument to  the  jury  was  closed,  and  the  court  had  charged 
the  jury,  the  defendant  asked  leave  of  the  court  to  with- 
draw from  the  jury  the  answer  of  the  said  Jordan  to  the 
third  direct  interrogatory,  and  the  court  allowed  him  to 
do  so;  and  the  court  specially  instructed  the  jury,  that 
said  answer  was  withdrawn  from  them,  and  was  no  evi- 
dence before  them,  and  that,  they  must  not  look  to 
answer  as  evidence  for  an}r  purpose;  to  which  action  and 
ruling  of  the  court  the  plaintiff  also  excepted."  The 
sustaining  of  the  demurrer  to  the  complaint,  the  rulings 
of  the  court  on  the  evidence,  and  the  refusal  of  a  charge 
requested  by  the  plaintiff,  are  the  matters  now  assigned 
.as  error. 

J.  KiviSTER,  for  the  appellant. 

Baixi:  &  XeSmith,  contra.  * 

A.   J.    WALKER,   C.   J.— [April    12,   1861.]— Both 
counts  of  the  complaint  were  in  trespass,  as  was 
by  this  court  in  the  kindred  case  of  Reason  Williams  v. 
Ivey,  at  the  present  term.     The  court  erred,  therefore, 
in  sustaining  the  demurrer  for  misjoinder  of  counts. 

[2.]  This  error  was  not  waived,  by  the  plaintiff's 
amending  and  proceeding  to  trial.  Section  2255  of  the 
Cod*  \  the  right  of  assigning  the  judgment  on  de- 

murrer for  error  in  such  a  case,  unless  the  plaintiff  has 
lined  no  injury  by  the  judgment  in   consequence  of 
the  amendment.    The  decision  in   Btallinga  v.  Newman, 
(26  Ala.  m  made  in  a  suit  commenced  on  the  8th 

we   find  by    consulting   the    on  . 
record;  and  it  w.  fore,  not  governed  by  the  C 

Besides,  in  that  case,  the  plaintiff  probably  sustained  n  i 
injury  from  the  ruling  oil  the  demurrer.      II 
not    say  that  the  plaintiff  has  not  been  inj  There 

are  wrongs  which  might  have  been   redress*  I    u 
-second  count,  and  yet  could  not  have  been  proved  ui 


222  SUPREME  COURT 


Jack  et  ;il   (slaves)  v.  Demur's  Executors. 


first,  The  decision  in  Skeppard  v.  Shelton,  34  Ala. 
w ..  -  made  upon  the  authority  of  Stallings  v.  New- 
man, our  attention  not  having  been  called  to  the  provis- 
ion of  the  Code  above  stated ;  and  we  do  not  regard  it  as 
B  correct  statement  of  the  law  as  it  exists  since  the  adop- 
tion of  the  Code. 

[•'>.]  If  there  was  any  error  in  the  admission  oi  the  an-* 
r  of  the  witness  Jordan  to  the  third  direct  interroga- 
tory, it  was  cured  by  the  subsequent  withdrawal  of  that 
evidence  from  the  jury,  and  the  explicit  instruction  of 
the  court  to  the  jury,  that  they  must  not  regard  it  as 
evidence,  and  must  not  look  to  it  as  evidence  for  any 
purpose. — See  the  cases  collected  in  Shepherd's  Digest, 
566, 

The  question  raised  by  the  refusal  of  the  charge  asked, 
may  not  again  arise,  and  we  do  not  deem  it  necessary  to 
pass  upon  it. 

Reversed  and  remanded.     ' 


H 


JACK  et  al.  (slavks)  vs.  DORAN'S  EXECUTORS. 

[8TATUTOBY   SOU   K>H    NtEXSOX.] 

•  slave. — In  this  State,  a  direct  l"v- 
qu<  lona  to  slaves  is  void,  unless  their  emancipation  IB 

authori  ed  by  some  speoial   legislative  provision;  and   where  the 
by  •  special  statute,  to  emancipate  his  slaves 
at  Ms  discretion,    but  is  required,  as  a  condition  precedent,  pre- 
viously to  convi  y  a   certain  quantity   of  land  to   the  judge  of  the 
county  court,  in  trust  for  their  use,  as  a  security  that  they  shall  not 
imo  a   public  charge,  a  devise  of  the  land  to  the  slaves  then> 
i  3,  in  a  will  -which    is   not    sufficiently   attested    to   pass    real 
.'c,  is- not  9  substantial  compliance  with  the  statute,  and  the  be- 
quest and  devise  arc  both  void. 

Appeal  from  the  Circuit  Court  of  Jackson. 


OF  ALABAMA.  223 


Jack  et  al.  (slaves)  v.  Doran's  Kxeeutors. 


The  record  does  not  show  the  name  of  the  presiding 
judge. 

This  action  was  instituted  by  the  appellants,  who  were 
the  slaves  of  James  Doran,  deceased,  in  his  life-time,  and 
who  sued  by  their  next  friend,  against  the  executors  and 
heirs-at-law  of  said  Doran.  The  plaint  ills  claimed  their 
freedom  under  two  special  acts  of  the  legislature  of  Ala- 
bama, which  were  made  exhibits  to  their  petition,  and 
under  the  will  of  said  Doran,  which  was  admitted  to  pro- 
bate, in  November,  1840,  as  a  will  of  personal  property 
only,  being  attested  by  but  two  witnesses. 

The  first  act  of  the  legislature,  entitled  "An  act  to  au- 
thorize .lames  Doran  to  emancipate  certain  slaves  therein 
named,"  approved  January  20,  1832,  was  in  these  words: 
"Be  it  enacted,"  &c,  "that  James  Doran,  of  Jackson 
county,  be,  and  he  is  hereby,  authorized  to  (to  take  effect 
at  his  discretion)  emancipate  and  set  free  slaves  of  the 
following  names — viz.,  Sally,  Annie,  Jack,  Catsy,  Davy, 
Emeline,  Eliza,  Jane,  Nancy,  Amanda,  Jerry,  and  Dolly; 
provided,  he  shall  previously  convey  to  the  judge  of  the 
county  court  of  said  county,  and  his  successors,  six  hun- 
dred and  forty  acres  of  land,  on  which  he  now  resides,  or 
lands  equal  in  value  thereto,  in  trust  forever,  lor  tin;  use 
of  said  slaves,  as  security  that  they  shall  not  become 
chargeable  on  any  city,  county,  or  town  in  this  State." 
The  other  act,  which  was  approved  January  5,  1833,  and 
entitled  "An  act  supplemental  to"  to  the  former,  author- 
1  Doran  to  emancipate  two  other  slaves,  .Jim  and 
Esther  by  name,  upon  the  condition  mentioned  in  the 
previous  act. 

Th<  of  said  Doran's  will,  upon  which  the  plain- 

1  their  claim  to  freedom,  was  as  fallows; 
Ihe  death  of  my  wif.-,  Linny  Doran,  1  give  and  bequeath 
unto  my  negro  slaves  which  I  now    have   at    home    with 
me,  ying  by  name  all  the  slaves  mentioned  in  tin- 

two  acta  of  th<  ire,  and  their  children,)  "and  all 

future  ii  "f  their  families,  their  freedom;  pro 

i  my  wife  during  the  whole  of 


SUPREME  COURT 


v.  1 1  iran's  Bxectil 

her  natural  life  t  time,"  &e.  "And,  as  the  law  obliges  the 
owners  of  slaves  tpgive  Beeurity  before  they  can  set  them 
free,  so  that  they  may  not  become  a  public  charge,  I 
to  them,  for  that  purpose,  the  whole  of  my  tract  of 
land  on  which  I  now  live,  to  be  divided  in  the  following 
manner."  &c. 

The  suit  was  instituted  in  September,  1858.  The  pe- 
tition alleged,  that  the  widow  of  said  Doran  died  in  1851; 
that  the  plaintiffs  were  afterwards  carried  into  Tennessee, 
by  some  of  the  defendants,  against  whom  the  other  de- 
fendants had  there  instituted  legal  proceedings  for  their 
recovery;  and  that  the  plaintiffs  were  still  in  Tennessee 
when  their  petition  was  filed.  The  circuit  court  sus- 
tained ;:  demurrer  to  the  petition,  and  its  judgment  is  now 
tied  as  error. 

II.  Cox,  for  appellant. 
P.  Tukney,  contra. 

R.  W.  WALKER,  J.— [Jan.  10  186*1.]— James  Doran, 
by  his  will,  which  was  exi  outed  in  this  State,  made  a  di- 
rect bequest  of  freedom  to  certain  slaves.     According  to 
the  repeated  decisions  of  this   court,  it  is  clear  that,  un- 
there  was  some  legislative  provision  authorizing  the 
emancipation,  the  bequest  was  void. — Trotter  v.  Blocker, 
6    I 'or.  LV.'.i;   Atwood    v.    lieck.    kJl    Ala.    012;  Alston    v. 
in. n,  7  Ala.  ?95;  Robewon  v.  Roberson,  21  Ala.  273. 
not    pretended    that    there   was   any   legislative  au- 
thority for  the  emancipation,    except   such   as    was  fur- 
id  by  the  special  act*  of  1882 and  1833,  which  are  set 
out,  in  tlic  record.  These  acts  authorized  Doran  to  emanci- 
pate these  slav.-.  the    emancipation    to  take  effect  at  his 
discretion;  but   they  provided,  as  a  condition  precedent 
to  the  emancipation,  that  he  should  previously  convey  to 
the  judge  of  the  county  court  of  Jackson  county  six  hun- 
dred and   forty  acres  of  land,  on   which  he  then  resided, 
or  lands  equal  in  value  thereto,  in   trust  forever,  for  the 
>f  said  slaves,  as  security  that   they  should  not  be- 
come  chargeable  on   any   city,  county,  or  towu  in  this 


OF  ALABAMA.  225 


"Wilkinson  v.  Hunter. 


State.  No  conveyance  of  any  kind  was  ever  made,  or 
attempted  to  be  made  by  Doran,  to  the  judge  of  the 
county  court,  in  trust  for  the  use  of  the  slaves.  The  at- 
tempt to  devise  the  six  hundred  and  forty  acres  c>f  land 
referred  to,  directly  to  the  slaves,  was,  perhaps,  made  with 
the  view  of  complying  with  this  requirement  of  the  legis- 
lature. But  that  attempt  was  futile,  if  for  no  other 
j-eason,  because  the  will,  having  been  attested  by  only 
two  witnesses,  was  not  so  executed  as  to  pass  real  estate; 
and,  consequently,  was  admitted  to  probate,  only  bo  far 
as  it  related  to  personalty.  This  devise  of  the  land  to 
the  slaves  being  void,  there  can  be  no  pretense  that 
Doran  ever  performed,  either  inform  or  in  substance,  the 
condition  which  the  legislature  preseribed  as  a  pre-requi- 
site  to  the  emancipation.  The  bequest  of  freedom  must, 
therefore,  be  treated  just  as  if  these  special  nets  of  the 
legislature  had  never  existed.  Thus  considered,  it  is,  ac- 
cording to  the  well  settled  law  of  this  State,  clearly  in- 
valid. 

Judgment  affirmed. 


WILKINSON  i*.  HUNTER. 

[final settlement  of  aduikistkatob'i  ACCOUNTS.] 

ttion  of  diligence  or  o<  by  whin: 

.ni  >u  an  administrator's  accounts,  it  being 
shown  that  a  deci  ndered  by  the  probate  court  in  his  fa- 

administration  to  deliver  up 
to  him  certain  cho  ing  to  th<  is  is 

on  liiin   to  p  -uch 

Hi  » hether  1  .•  ntly  failed  to  j 

deliv<  ry,  or  I  ule  i  to  collecl    them  alt<-r  obtaining  the  ; 

•    the  amount  w  bi<  li,   by  tho 

in  ad- 


SUPREME  COURT 


Wilkinson  v.  Hunter. 


minis trator  is  chargeable,  on  final  settlement  of  his  accounts,  not 
with  the  nominal  amount  of  certain  choses  in  action  belonging  to 
the  estate,  which  his  predecessor  in  the  administration  was  ordered 
to  deliver  up  to  him,  but  with  the  amount  in  money  which,  by  the 
exercise  of  due  diligence,  he  might  have  collected  on  them  ;  he 
cannot  be  charged  with  the  amount  of  an  account  on  a  third  per- 
son, one  of  such  choses  in  action,  merely  on  proof  of  the  solvency 
of  the  debtor;  nor  with  the  amount  of  a  decree  rendered  by  the 
probate  court  in  favor  of  his  predecessor,  against  a  preceding  ad- 
ministrator, without  proof  of  the  solvency  of  the  defendant  in* 
said  decree  or  his  sureties ;  nor  with  the  amount  of  a  judgment 
rendered  in  favor  of  his  predecessor,  on  proof  that  one  of  the  de- 
fendants therein  was  in  possession  of  a  tract  of  land,  the  value  of 
which  is  not  shown,  and  that  the  other  defendant  removed  from 
this  State  before  he  became  administrator,  and  afterwards  returned 
and  sold  a  tract  of  land. 

Appeal  from  the  Probate  Court  of  Chambers. 

In  the  matter  of  the  estate  of  Bailey  C.  Newman,  de- 
ceased, on  final  settlement  of  the  accounts  of  Henry  L. 
Wilkinson,  administrator  de  bonis  won,  to  which  he  was 
cited  by  William  II.  Hunter,  his  successor  in  the  admin- 
istration. Wilkinson  appeared,  in  answer  to  the  citation, 
ajleged  that  no  assets  belonging  to  the  estate  had  come 
to  his  hards,  and  moved  to  be  discharged.  Hunter  con- 
tested this  return,  and  moved  the  court  to  charge  said 
Wilkinson  with  the  following  sums:  "  1st,  the  amount  of 
a  decree  rendered  by  said  probate  court  of  Chambers,  on 
the  13th  August,  1855,  in  favor  of  said  Wilkinson,  against 
Willian.  Davis,  former  sheriff,  and  ex  officio  administrator 
de  bonis  non  of  said  estate,  forccrtain  notes,  accounts,  and 
receipts,  therein  mentioned,  and  also  certain  moneys 
therein  mentioned,  which,  by  said  decree,  were  required 
to  be  paid  and  turned  over  to  said  Wilkinson;  2d,  with 
the  balance  due  pn  a  judgment,  rendered  by  the  circuit 
court  of  said  county,  on  the  24th  March,  1854,  in  favor  of 
said  Davis,  administrator,  &c,  against  \V.  W.  Boazman, 
P;  T.  Boazman,  and  John  L.  Garrett,  for  $230,  (credited 
with  §73  on  the  4th  August,  1854,  and  with  $20  on  the 
1st  September,  1854,)  which  could  have  been  collected  by 
the  use  of  proper  diligence;  and,   3d,   with  the  amount 


OF  ALABAMA.  227 


Wilkinson  v.  Hunter. 


shown  to  bo  in  the  hands  of  said  Davis,  former  adminis- 
trator, &c.r  as  shown  by  the  decree  of  final  settlement, 
rendered  by  said  probate  court  on  the  13th  August,  1855, 
with  interest  thereon,  which  could  have  been,  collected  by 
the  use  of  proper  diligence." 

"The  proof  was,"  so  the  bill  of  exceptions  states, 
"that  the  plaintiff  (Wilkinson)  was  appointed  administra- 
tor of  said  estate  on  the  12th  March,  1855;  and  that  his 
term  of  office  as  sheriff  had  expired  before  his  return  in 
this  case.  The  defendant  (Hunter)  offered  in  evidence 
the  whole  record  of  the  administration  of  said  William 
Davis,  showing  the  return  filed  by  him  for  final  settle- 
ment, and  the  several  orders  and  decrees  of  the  court 
thereon,  which  are  in  the  following  words."  (In  his  re- 
turn said  Davis  charged  himself  with  the  amount  of  a 
decree,  rendered  by  said  probate  court,  in  his  favor,  on  the 
14th  March,  1854,  against  Elizabeth  Baker,  as  the  ad- 
ministrator of  her  deceased  husband,  M.  G.  Baker,  who 
was  the  predecessor  of  said  Davis  in  the  administration 
of  said  Newman's  estate,  for  $98  29;  also,  with  the  sum 
of  |98,  collected  on  the  judgment  in  his  favor  against  W. 
W.  Boazman,  F.  T.  Boazman,  and  John  L.  Garrett,  which 
is  above  described;  also,  with  an  account  against  Thomas 
Cobb,  for  §6  75,  two  accounts  against  William  Leverett, 
together  amounting  to  §14  50,  and  several  other  accounts, 
notes,  and  attorneys'  receipts,  which  require  no  particu- 
lar notice.  On  final  settlement  of  his  accounts  and 
vouchers,  after  due  publication  and  notice,  the  court  ren- 
dered a  decree  against  said  Davis,  which, — after  reciting 
that  no  objections  have  been  made  to  his  account;  that 
the  assets  in  his  hands  "are  in  notes,  accounts,  and  re- 
ceipts, on  various  individuals,  amounting  in  the  aggregate 
to  the  sum  of  $610  00,"  and  that  he  is  entitled  to  retain 
|25,  commissions  and  attorney's  fee, — orders  him  t 
liver  over  to  Wilkinson,    his  successor,    "all    said   n 

d  judgments  due  said  esl  -The 

plaintiff  objected  to  each  part  of  this  evidence;  the  court 
overruled  his  objection,  and  admitted  the  evidence,  and 
the  plain tifl  I." 


SUPREME  COURT 

Wilkinson  v.  Hunter. 


"The  defendant  also    read  in   evidence,    against  the 
plaintiff's  objections,  the  record  of  the  suit  against  W". 
W.  Boazraan,  P.  T.  Boazman,  and  John  L.  Garrett,  and 
the  note  on  which  said  suit  was  founded;  "  showing  the 
renditioirof  the  judgment,  and  the  partial  payments  un- 
der execution,  as  above  stated;  and  the  pi aintiff  reserved 
exceptions  to  the  admission    of   this  evidence.      "The 
proof  was,  that  said  W.W.  Boazman  was  insolvent;  that 
said  F.  T.  Boalaman  was  in  possession  of  a  piece  of  land 
after  plaintiff  was  appointed  administrator  of  said  estate; 
(but  the  witness  did  not  know  whether  or  not  he  owned 
said  laud;  nor  was  its  value  proved,  nor  the  quantity  of 
acres  it  contained;)  that  the  said  Boazman  had  removed 
to  Russell  county,  and  was  keeping  a  family  grocery  near 
Opelika;  that  he  was  a  man  of  family;  that  one  witness 
sold  him  goods,  and  regarded  him  as  honest,  hut  did  not 
think  that  the  whole  of  said  judgment  could  have  been 
collected  out  of  him  by  legal  process.     It  was  proved, 
also,  that  John  L.  Garrett  removed  from  this  State,  with 
his  property,  before  the  rendition  of  said  judgment,  and 
before,  the  plaintiff's    appointment    as  administrator  of 
saiil  estate;  that  he  resided  in  Louisiana,  and  was  solvent, 
and  good  for  this  debt;  that  he  returned  to  Chambers 
county,  on  a  visit,  in  1857-8,  and,  while  there,  sold  a  lot 
of  land  in  said  county  for  -fifty  dollars.     There  was  proof, 
also,  of  the  solvency  of  Thomas  Cobb  and  William  Leve- 
rett  ;  and   that   a  decree  was  rendered    b}T  said  probate 
court,  on  the  13th  March,  1854,  in   favor  of  said   Davis, 
administrator,  &c,  against  Elizabeth  Baker,  as  adminis- 
tratrix of  M.  G.  Baker,  deceased,  (who  was  the   former 
administrator  of  said  Bailey  C.  Newman,)  on  final  settle- 
ment of  said  M.  G.  Baker's  administration  on  said  estate, 
in  favor  of  said  Davis,  as  administrator,  &c.,  for  the  sum 
of  §98  20, — for  which  sum,  by  said  decree,  execution  wa3 
ordered  to  issue.  " 

"This  being  all  the  evidence  in  the  case,  the  probate 
court  thereupon  rendered  a  decree  against  the  plaintiff, 
in  favor  of  the  defendant,  for  the  sum  of  $667  64;"  to 
which  the  plaintiff'  excepted,  and  which,  with  the  several 


OF  ALABAMA.  '  229 


Wilkinson  v.  Hunter. 


rulings  of  the  court   on  the  evidence,  he  now  assigns  as 
error. 

•Brock  &  Barnes,  for  appellant. 

ElCIIARDS  &  FALKNER,  COHtfa. 

A.  J.  WALKER,  C.  J.— [March  9, 1861.]— We  Assume, 
that  the  failure  of  the  appellant  to  obtain  a  different  de- 
cree against  Davis,  more  favorable  to  the  estate  which  he 
represented,  was  not  the  result-  of  any  fraud  or  negli- 
gence on  his  part,  for  the  record  does  not  authorize  us  to 
impute  cither  to  him.  When  the  decree  was  rendered  in 
his  favor,  it  was  his  duty  to  demand  from  hia  predecessor 
the  evidences  of  debt  ordered  to  be  delivered  to  him,  and, 
upon  a  refusal  of  his  demand,  to  proceed  to  obtain  the 
enforcement  of  the  decree.  It  being  shown  that  the  de- 
cree for  the  delivery  of  the  choses  in  action  was  rendered 
in  his  favor,  the  onus  was  upon  him  to  prove  that  he  had 
used  due  diligence  to  obtain  their  delivery;  and  as  he 
failed  to  prove,  in  the  court  below,  that  he  had  made 'an 
effort  to  procure  such  delivery,  or  that  he  con  Id  not  have 
procured  -'■',  delivery  byvthe  use  of  diligence,  it  was 
proper  for  the  court  below  to  hold  him  guilty  of  negli- 
gence, in  failing  to  obtain  possession  of  the  choses  in  ac- 
tion. But  whether  he  wasguilty  of  negligence,  in  failing 
to  obtain  delivery  of  the  choses  in  actio!),  or  obtained 
on  of  them,  and  then  failed  to  collect  them,  he 
would  only  be  responsible  for  money  to  the  amount  which, 
in  the  exercise  of  due  diligence,  he  could  have  collected 
Upon  them.  The  court  should  have  inquired,  therefore, 
to  what  amount  the  choses  in  action  could  have  been  col- 
d  by  him,  it  he  had  exercised  proper  diligence  in  an 
effort  to  make  such  collection.  As  to  that  inquiry,  the 
Mus  of  proof  was  on  the  appellee;  for  the  law  could  not 
|  :111c,  that  choses  in  action,  not  resulting  from 
of  property  made  by  the  appellant,  but  coming  to  him 
Irom  the  hands  of  hii   p  capable   ol 

lection.     The  correctnw  fore,  of  the  decree   ren- 

dered against  the  appellant,  depend-  opou  the  question, 


I  _     SUPREME  COURT 

Wilkinson  v.  Hunter. 


whether  the  evidence  justified  the  conclusion,  that,  by 
the  exercise  of  proper  diligence,  he  could  have  realized 
from  the  choscs  iu  action,  which  his  predecessor  was  or- 
dered to  deliver  to  hira,  the  amount' with  which  he  was 
charged. 

Among  the  choses  in  action  directed  to  be  delivered  to 
the  appellant,  there  were  three  accounts — one  on  Thomas 
Cobb,  and  two  on  William  Levcrett — as  to  which  there 
was  no  proof,  except  that  Cobb  and  Leverett  were  solvent. 
This  evidence  was  not  sufficient,  of  itself,  to  authorize 
the  charging  of  the  appellant  with  the  amount  of  those 
accounts.  The  accounts  were  not  pvima-facie  evidence  of 
indebtedness;  and  the  administrator  could  not  he  charge- 
able with  the  amount  of  them,  in  the  absence  of  evidence 
that  they  were  debts  susceptible  of  enforcement  in  courts 
of  justice.  There  were  several  other  accounts,  and  re- 
ceipts for  accounts,  as  to  which  there  was  no  proof  what- 
ever; and  with  these,  upon  the  evidence  before  the  court, 
the  appellant  was  not  chargeable. 

The  proof  did  not  justify  the  charging  of  the  appellant 
with  the  amount  of  the  decree  against  Elizabeth  Baker, 
because  there  was  nothing  which  authorized  the  infer- 
ence, that  the  defendant  in  that  decree,  or  the  sureties 
liable  therefor,  were  solvent  after  the  appellant  became 
administrator., 

The  proof  before  the  probate  court  did  not  authorize 
that  court  to  charge  the  appellant  with  the  amount  of  the 
judgment  against  \V.  YV.  Boazman,  F.  T.  Boazman,  and 
John  L.  Garrett.  Conceding  that  F.  T.  Boazman's  pos- 
ion  nf  a  tract  of  land  raised  the  presumption  that  the 
land  belonged  to  him;  yet  the  value  of  the  land  was  not 
shown;  and  it  could  not  he  inferred,  therefore,  that  either 
the  entire  judgment,  or  any  specified  part  of  it,  could 
have  been  collected  out  of  the  land.  Whether,  in  the 
attitude  of  the  ease  made  by  the  proof,  the  onus  as  to  the 
exemption  of  the  laud  from  execution  was  upon  the  one 
party  or  the  other,  we  do  not  decide.  If,  upon  a  future 
trial,  it  should  appear  that  Boazman  really  owned  a  tract 
of  land,  the  parties  can  easily  settle  the  question,  whether 


OF  ALABAMA.  231 


Wright  v.  Falkner. 


the  land  was  exempt  from  execution,  by  introduciirg  tes- 
timony on  the  point.  The  mere  fact  that  Garrett,  one  of 
the  defendants  in  the  judgment,  returned  from  Louisiana, 
and  sold  a  lot  of  land  for  fifty  dollars,  did  not  show  that 
the  appellant  could,  by  the  use  of  proper  diligence,  have 
subjected  the  land  to  the  payment  of  the  judgment. 
Garrett  was  not  in  the  possession  of  the  land,  so  as 
to  afford  notice  of  his  proprietorship;  and  it  cannot 
be  presumed  that  the  appellant  was  guilty  of  negligence, 
in  failing  to  discover  the  ownership  of  the  land,  wheu 
there  was  no  visible  indication  of  the  fact.  We  mention, 
without  comment,  the  fact  that  the  proof  leaves  to  con- 
jecture the  important  question,  whether  Garrett  had  such 
a  title  to  the  land  as  was  subject  to  sale  under  execution  ; 
and  that  it  also  leaves  room  for  speculation,  as  to  whether 
he  sold  the  land  for  himself,  or  for  another. 

The  principles  above  laid  down,  as  to  the  claims  which 
have  been  specially  considered,  will  be  sufficient  to  gov- 
ern the  probate  court  in  passing  upon  the  other  items. 

The  judgment  is  reversed,  and  the  cause  remanded. 


.WRIGHT  vs.  FALKNER. 

HOW    FOR    BREACH    OF   SPECIAL    CONTRACT.] 

mtract. — Tn  ;in  action    for  a  breach  of  con- 
.-•  -l.y  which  plaintiff  agreed  to  serve  defendant,  in  the  capa- 
city •  .  for  the  term  of  on-'  year,  but  was  dh 
without  fault  on  hi  spiratiojn  of  the  year, — if  the 
suit  is  coi               I   before  the  expiration  of  the  year,  the  plaintiff 

er  unliquidated  damages  for  the  breach  of  cont 
and  ..    that  the  stipul 

i  I  be  ih'  of  damag 

kal  from  the  Circuit  Court  of  Butler. 
Tried  before  the  lion.  Kobkrt  J  i 


SUPREME  COURT 


Wright  v.  Falkner. 


Tin-  action  was  brought  by  Richard  Falkner,  againal 
William  Wright,  and  was  commenced  on  the  12th  August, 
The  complaint  contained  .the  common  count  for 
work  and  labor,  and  a  special  count  in  the  following 
words:  "Plaintiff  claims  of  defendant  the  sum  of  $150 
damages,  for  the  breach  of  an  agreement  entered  into 
between  them  on  the  24th  January,  1859,  by  which  de- 
fendant promised,  if  plaintiff  would  overseer  for  him,  on 
his  farm  in  Butler  county,  from  that  time  until  christmas, 
1859,  that  he  would  have  plaintiff's  washing  done,  and 
would  give  plaintiff  one  bjindred  and  fifty  dollars  for  his 
services;  and  plaintiff  avers,' that  he  commenced  work 
for  defendant,  as  his  overseer,  under  said' contract,  on  the 
31st  .January,  1859,  with  the  full  knowledge  and  consent 
of  said  defendant,  and  fully  and  faithfully  performed  his 
duties  as  such  overseer,  under  and  according  to  said  con- 
tract, and  continued  to  perform  them  so  long  as  said  de- 
fendant permitted  him  to  do  so;  but  he  avers,  that  said 
defendant,  on  the  4th  August,  1859,  without  any  just 
cause,  turned  him  off  from  bis  employ,  and  refused  to 
allow  him  to  perform  his  part  of  said  contract;  and  that 
said  defendant   then  *b  thereto  requested, 

and  does  still  refuse,  to  pay  him  the  3150  so  promised  to 
him,  or  to  make  any  just  compensation  for  said  breach  of 
said  contract." 

■  "On  the  trial,"  as  the  bill  of  exceptions  states,  "the 
proof  showed,  that  the  plaintiff  and  defendant  entered 
into  a  contract,  about  the  24th  .January,  1859,  by  which 
plaintiff  agreed  to  serve  defendant  as  an  overseer  for  the 
balance  of  that  year,  for  the  sum  of  $150;  that  the  plain- 
tiff entered  upon  the  performance  of  said  contract,  and 
continued  with  the  defendant  until  about  the  1st  August, 
1859,  when  the  defendant  turned  him  off;  but  the  proof 
was  conflicting,  as  to  whether  or  not  the  defendant  was 
justified  in  so  turning  him  off.  The  court  charged  the 
jury,  that  if  they  believed,  from  the  evidence,  that,  the 
plaint  iif  and  defendant  entered  into  a  contract  at  the  time 
allege;]  in  the  complaint,  by  which  the  plaintiff  agreed  to 
serve  the  defendant  as  an  overseer  for  the  balance  of  that 


OF  ALABAMA. 


Wright  v.  Falkner, 


year,  for  the  price  of  $150,  which  the  defendant  agreed 
to  give;  and  that  the  plaintiff  entered  upon  the  discharge 
of  his  duties  under  said  contract,  and  continued  to  dis- 
charge his  duty  properly  until  August,  1860,  when  he 
was  discharged  by  the  defendant,  without  sufficient  cause, 
then  the  plaintiff  was  entitled  to  recover  the  whole 
amount  which  the  defendant  had  agreed  to  give  him  for 
his  year's  wages,  with  interest  thereon,  from  the  time  he 
was  discharged  by  the  defendant,  up  to  the  time  of  the 
trial."  The  defendant  excepted  to  this  charge,  and  he 
now  assigns  it  as  error. 

Baine  &  NbSmith,  for  appellant. 
Adams  &  Herbert,  contra. 

STONE,  J.— [Feb.  14,  1861.]— The  present  suit  was 
instituted  before  the  expiration  of  the  term  during  which 
Mr.  Falkner  had  agreed  to  serve  Mr.  Wright  in  the  capa- 
city o{  overseer.  Hence,  under  the' authorities,  we  must 
hold,  that  Mr.  Falkner  did  not  elect  to  regard  the  contract 
as  continuing,  but  as  ended  by  the  act  of  the  opposite 
party — Mr.  Wright. — Ramey  v.  Ilolcombe,  21  Ala.  567, 
and  authorities  cited.  His  suit,  then,  was  for  unliquidated 
damages,  and  not  for  wages  due  for  the  whole  year,  under 
the  terms  of  his  contract. — Fowler  v.  Armour,  24  Ala.  194. 
"In  Buch  case,  the  amount  of  wages  for  which  he  had 
stipulated  would  not  be  the  measure  of  damages.  His 
actual  damage,  all  the  circumstances  considered,  whether 
more  or  less  than  that,  would  be  the  true  measure  of  the 
amount  which  he  would  be  entitled  to  recover." — Fowler 
v.  Armour,  supra. 

In  this  action,  brought  at  the  time  it  was,  it  cannot  be 
affirmed,  as  matter  of  law,  that  the  plaintiff  is  entitled  to 
recover  the  entire  wages  agreed  on. 

Reversed  and  remanded. 


16 


234  SUPREME  COURT 


Ronoy's  Adm'r  v.  Winter. 


RONEY'S  ADM'R  vs.  WINTER. 

[action  on  promissory  note,  bt  payee  against  MAKER. J 

] .  Note  signed  ly  agent,  for  principal,  held  prima  facie  contract  of  prill' 
cipal. — A  promissory  note,  beginning  thus,  "  Twelve  months  after 
date,  we  promise  to  pay,"  &c. ;  and  signed  thus,  "  For  the  Mont- 
gomery Iron  Works,  J.  S.  W.,  president,  S.  J.,  secretary,'' — is, 
prima  facie,  the  contract  of  the  principal,  and  not  binding  on  J.  S. 
W.  personally. 

Appeal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  Hon.  S.  D.  Hale. 

This  action  was  brought  by  William  C.  Ronej-,  (and 
was  revived  in  the  name  of  his  administrator,)  against 
Joseph  S.  Winter;  and  was  founded  on  a  promissory  note, 
of  which  the  following  is  a  copy : 

$300.  "Montgomery.  Ala.,  Jan.  1,  1855. 

Twelve  manths  after  date,  we  promise  to  pay  Win.  C. 
Roney,  or  bearer,  three  hundred  and  ninety  dollars,  for 
the  hire  of  Jim  and  Jerry  for  the  present  year.  We  are 
to  feed  the  said  negroes,  and  furnish  them  with  the  usual 
clothing;  usual  terms  of  hiring  governing. 

"For  the  Montgomery  Iron  Works, 
"J,  S.  Winter,  President, 
"Sanders  Irving,  Secretary." 

The  record  docs  not  show  what  pleas  were  filed.  On  the 
trial,  as  appears  from  the  bill  of  exceptions,  the  plaintiff 
proved  the  defendant's  signature  to  this  note,  and  then 
oflored  to  read  it  to  the  jury;  but,  on  the  defendant's 
motion,  the  court  excluded  it.  The  plaintiff  excepted  to 
this  ruling  of  the  court,  and  was  thereby  compelled  to 
take  a  nonsuit  ;  and  he  now  assigns  the  ruling  of  the 
court  as  error,  and  moves  to  set  aside  the  nonsuit. 


OF  ALABAMA.  235 


Ronev's  Adm'r  v.  Winter. 


Watts,  Judge  &  Jackson,  for  the  appellant,  cited  Story 
on  Agency,  §§  147,  154-57,  269,  270;  Dawson  v.  Cotton, 
26  Ala.  591 ;  13radlee  v.  Boston  Glass  Co.,  16  Pick.  350  ; 
Harwood  v.  Humes,  9  Ala.  659 ;  Lazarus  v.  Shearer, 
2  Ala.  718;  Gillespie  v.  Wesson,  7  Porter,  454. 

Jno.  A.  ElmorB,  contra. 

li.  W.  WALKER,  J.— [March  9,  1861.]— The  rigid 
rale  of  the  common  law,  which  requires  that  a  deed,  exe- 
cuted by  an  attorney,  for  a  principal,  must  be  made  and 
executed  in  the  name  of  the  principal,  in  order  to  operate 
as  his  deed,  does  not  apply  to  instruments  not  under  seal. 
Carter  v.  Doe  d.  Chaudron,  21  Ala.  72,  88-7;  A'ew  Eng- 
land Marine  Ins.  Co.  v.  Dewolf,  8  Tick.  56;  Andrews  v, 
Estes,  2  Fairfield,  267;  Robertson  v.  Pope,  1  Rich.  L.  501  • 
Story  Ag.  §  148;  1  Am.  Lead.  Cas.  (2d  ed.)  609. 

In  reference  to  this  latter  class  of  instruments,  the  rule 
is,  that  if  the  name  of  the  principal  appear  in  the  instru- 
ment, and  it  is  evident  from  the  writing,  as  a  whole,  that 
the  intention  was  that  the  principal,  and  not  the  agent, 
was  the  person  to  be  bound,  the  principal  alone  will  be 
bound,  if  the  agent  had  authority  to  make  the  agreement, 
although  the  instrument  be  signed  in  the  agent's  name 
only.— Townsend  v.  Hubbard,  4  Hill,  351,  357;  liathbon 
v.  Budlong,  15  Johns.  1;  Penty  v.  Stanton,  10  Wend.  271; 
I<ra. lice  v.  Boston  Glass  Co.,  16  Pick.  347  ;  Robertson  v. 
Pope,  1  Rich.  501;  Abbey  v.  Chase,  6  Cush.  56;  Hicks 
v.  Jlurde,  9  Barb.  529. 

The  principle  is  thus  stated,  in  Key  v.  Parnham,  6  Ilar- 
i  Johns,  418: — "Whenever,  upon  the  face  of  an 
agreement,  a  party  contracting  plainly  appears  to  be  act- 
ing as  thi'  agent  of  another,  the  stipulations  of  the  con- 
tract are  to  be  considered  as  operating  solely  to  bind  the 
principal;  unless  it  manifestly  appears,  by  the  terms  of 
the  instrument,  that  the  agent  intended  to  superadd  or 
substitute  his  own  responsibility  for  that  of  his  principal. 
In  such  case,  and  in  such  case  only,  if  acting  within  the 
of  his  powers,  is  lie  personally  responsible.'! 

Applying   this   principle  to  the    present  <a- 


206 SUPREME  COURT 

Stone  &  Best  v.  Watson. 

clear  that  the  note  ottered  in  evidence  did  not,  prima  facie, 
bind  Winter  personally ;  and  this  conclusion  is  abundantly 
sustained  by  numerous  decisions,  in  regard  to  instruments 
substantially  identical  in  form  with  the  note  here  sued 
on. — Rice  v.  Gove,  22  Pick.  158;  Long  v.  Colburn, 
11  Mass.  97  ;  Robertson  v.  Pope,  1  Rich.  501 ;  Farmers' 
&  Mechanics'  Bank  v.  Troy  Bank,  1  Dougl.  458  ;  Emer- 
son v.  Prov.  Hat  Man.  Co.,  12  Mass.  237;  Ballou  v.  Tal- 
bot, 16  Mass.  641 ;  Key  v.  Parnham,  6  Harr.  &  Johns.  418; 
Stringfellow  &  Hobson  v.  Marriott,  1  Ala.  573;  1  Am. 
Lead.  Cas.  624-7;  liathbon  v.  Budlong,  15  Johns  1; 
1  Parsons  Contr.  48. 

As  the  note,  standing  by  itself,  did  not  import  an  obli- 
gation on  the  defendant,  and  as  it  was  not  proposed  to 
introduce  any  other  evidenca  in  connection  with  it,  it  was 
properly  excluded. 

Judgment  affirmed. 


STONE  &  BEST  vs.  WATSON. 

[action  for  damages  on  account  of  unsoundness  of  SLAVE.] 

1.  Demurrer  io  original  and  amended  complaints. — Where  the  origin.il 
complaint,  contains  a  single  count,  and  an  amended  complaint  is 
afterwards  filed,  containing  several  additional  counts,  a  recital  in 
the  judgment-entry,  that  a  demurrer  was  sustained  "as  to  the  first 
two  counts  in  the  complaint,"  will  be  construed  to  apply  to  the 
single  count  in  the  original  complaint,  an  I  to  the  first  count  <n  the 
amended  complaint. 

2.  Averment  of  fact,  and  of  conclusion. — An  averment  that  a  slave  is 
unsound,  i»  the  statement  of  a  fact,  and  not  of  a  conclusion  from 
i'act°. 

3.  Assignment  of  general  and  special  breaches. — In  an  action  by  the  pur- 
chaser, against  the  vendor  of  several  slaves,  a  count  on  a  subse- 
quent contract, — by  which  it  was  agreed,  on  account  of  the 
unsoundness  of  one  of  the  slaves,  who  was  warranted  sound,  that 
the  vendor  should  take  back  said    slave,  and  should  pay  tie  pur- 


•  OF  ALABAMA.  2C7 


Stone  &  Best  v.  Watson. 


chaser  a  specified  sum  of  money,  which   sum  the  count  seeks  to 
recover, — does   not  require  the  assignment  of  a  special  breach, 
(('ode,  \  2235  ;)  nor  is  a  special  breach  required  in  a  count  on  an 
alleged  rescission  of  the  original   contract,  by   subsequent  &g 
ment,  on  account  of  the  unsoundness  of  one  of  the  sla\ 

4.  Proof  of  value  of  slave.  —  In  ascertaining  the  purchaser's  damages, 
resulting  from  a  breach  of  warranty  of  the  soundness  of  a  slave, 
proof  of  the  value  of  the.  slave  a  few  months  after  the  sale  is  ad- 
missible, as  shedding  light  on  the  question  of  value,  at  the  time  of 
the  sale. 

o.  Same. — A  slave  doing  described  in  the  bill  of  sale  as  a  seamstress, 
it  is  permissible  for  the  purchaser)  in  an  action  to  recover  damages 
on  account  of  her  unsoundness,  to  prove  what  would  have  been 
her  value,  if  soun.l,  ''  taking  into  consideration  the  fact  that  she 
was  a  good,  No.  1  seamstress." 

6.  Same. —  In  proving  the  value  of  a  slave,  a  witness  cannot  be  allowed 
to  state  what  her  value  would  be,  "if  she  possessed  the  qualities 
which  she  was  reputed,  to  possess.'' 

7.  Proof  of  medical  bill,  a*  part  of  damages. — It  is  permissible  foi  the 
purchaser,  in  an  action  to  recover  damages  on  account  of  the  un- 
soundness of  a  slave,  to  prove  at  whose  request  a  physician  was 
called  in  to  the  slave,  and  as  whose  property  the  physician  attended 
her  ;  but  the  physician's  account  for  services  rendered  to  the  slave, 
which  was  paid  by  the  purchaser,  is  not  admissible  evidence  for 
him,  until  it  has  been  proved  that  the  services  were  rendered  as 
charged,  for  the  treatment  of  a  disease  existing  at  the  time  of  the 
sale,  and  that  the  charges  were  correct 

8.  T>  what  witness  may  testify. — A  witness  may  testify  that  a  slave 
looked  Kiel;  although  he  is  neither  a  physician,  nor  an  expert. 

9.  Declarations  of  sick  slave. — The  declarations  of  a  slave  while  sick, 
as  to  the  nature  and  symptoms  of  his  disease,  are  competent  evi- 
dence en  the  principle  of  res  gestae,  as  well  as  from  the  necessity  of 
the  ease,  although  made  to  a  person  who  is  not  a  physician. 

10.  Rett  oancy  of  evidence  on  ancation  of  care  or  negligence. — One  of  the 
questions  in  the.  case  being,  whether  the  purchaser  was  guilty  of 
negligence  in  his  treatment  of  a  female  slave,  during  tho  time  she 
remained  in  his  possession,  before  he  tendered  her  back  t<>  the 
vendor  ;  and  it  having  been  proved  that  the  slave  was  badly 
burned,  while  in  his  possession,  by  the  accidental  explosion  of  a 
fluid  lamp,  whereby  her  value  was  greatly  impaired,  and  was  after- 
wards -'lit  by  him,  by  the  public  stage,  to  the  plaeeof  the  vendor's 

lence,     it    -  permissible  for  him  to  prove  that  the  slave  \ 

ted  his  orders  in  u>ing  the  lamp,  and  that  he  was  advised  by  a, 
physician,  whom  he  consulted,  that  he.  might  send  her  by  the 
stage,  with  safety. 


238  SUPREME  COURT 


Stone  &  Best  v.  W:itson. 


Appeal  from  the  Circuit  Court  of  Talladega. 
Tried  before  Hon.  Robert  Dougherty. 

This  acHon  was  brought  by  S.  D.  Watson,  against  the 
appellants,  as  partners.  The  original  complaint  con- 
tained a  single  count,  claiming  $3100  damages  for  a 
breach  of  a  warranty  of  soundness  of  three  slaves  — 
Sarah  Ann,  Elizabeth,  and  Caroline,  by  name — sold  by 
defendants  to  plaintifl  on  the  6th  March,  1857;  and  an 
amended  complaint  was  afterwards  filed,  in  the  following 
words  : 

"The  plaintiff,  by  leave  of  the  court  first  had  and  ob- 
tained, claims  of  the  defendants  $2000  damages  for  a 
breach  of  warranty  in  the  sale  of  certain  slaves,  to-wit, 
Sarah  Ann,  a  seamstress  woman,  about  twenty  years  old, 
Elizabeth,  and  Caroline,  by  the  defendants  to  the  plaintiff, 
on  the  6th  March,  1857;  which  slaves  the  defendants 
warranted  to  be  sowid  and  healthy,  when  in  fact,  at  the 
time  of  said  sale  and  warranty,  said  slaves  were  unsound 
and  unhealthy.  ™ 

"The  plaintiff  claims  of  the  defendants  the  further 
sum  of  $1300,  due  by  contract  made  by  them  on  the  1st 
-July,  1857,  substantially  as  follows:  The  plaintiff,  on  the 
6th  March,  1857,  purchased  from  the  defendants  the  ne- 
groes above  mentioned,  for  the  sum  of  $3150,  (all  of 
which  was  paid  at  that  time,)  and  the  said  defendants 
then  and  there  executed  and  delivered  to  plaintiff  their 
bill  of  sale  for  said  slaves,  warranting  them  to  be  sound 
and  healthy;  but  plaintifl  avers,  that  said  girl  Sarah  Ann 
was  not  sound  and  healthy  at  the  time  of  said  sale,  but, 
on  the  contrary,  was  unsound  and  unhealthy;  in  conse- 
quence of  which,  plaintiff  was  greatly  injured,  to-wit,  in 
the  sum  of  $1500,  for  which  the  defendants  thereby 
became  liable  to  him  in  an  action  at  law;  and  the  de- 
fendants, in  consideration  thereof,  on  the  1st  July,  1857, 
agreed  with  plaintiff  to  take  back  said  Sarah  Ann,*and 
to  pay  plaintiff  the  sum  of  $1300;  and  plaintiff  agreed, 
on  his  part,  to  return  said  slave;  and  in  pursuance  there- 
of, he  did,  on  the  8th  July,  1857,  return  her  to  the   de- 


OF  ALABAMA.  239 


Stone  &  Best  v.  Watson. 


fendants;  yet  they  have  failed  and  refused   to  pay  said 
8 urn  of  money,  or  any  part  thereof. 

"The  plaintiif  claims  of  the  defendants,  also,  the 
further  sum  of  $1300,  for  that  the  plaintiff,  on  the  6th 
IJarch,  1857,  purchased  of  the  defendants  the  slaves  above 
named,  tor  the  sum  of  $3150,  (all  of  which  was  paid  on 
said  day,)  and  the  defendants  then  and  there  executed 
and  delivered  to  plaintiff  their  bill  of  sale  for  said  slaves, 
warranting  them  to  be  sound  and  healthy;  but  plaintiff 
avers,  that  said  slave  Sarah  Ann,  at  the  time  of  said  sale 
and  warranty,  was  not  sdund  or  healthy,  but,  on  the  con- 
trary, was  much  diseased;  in  consequence  whereof,  the 
defendants  became  liable  to  an  action  at  law  by  the 
plaintiff;  in  consideration  whereof,  the  defendants  agreed 
with  the  plaintiff  to  pay  him  the  sum  of  $1300,  and  to  take 
back  said  slave  Sarah  Ann;  and  the  plaintiff,  in  pursu- 
ance of  said  contract,  on  the  8Ua  July,  1857,  tendered  and 
offered  .to  deliver  said  slave  to  defendants,  but  the  defend- 
ants refused  to  receive  said  slave,  and  also  failed  and  re- 
fused to  pay  said  sum  of  money,  or  any  part  thereof,  to 
the  said  plaintiff. 

"The  plaintiff  claims  of  the  defendants  the  further 
sum  of  §1300,  for  that  the  plaintiff,  on  the  6th  March, 
1857,  purchased  of  the  defendants  the  negroes  above 
named,  for  the  sum  of  $3150,  (which  was  all  paid  at  that- 
time,)  aud  the  defendants  then  and  there  executed  and 
delivered  to  plaintiif  their  bill  of  sale  for  said  slaves, 
warranting  them  to  be  sound  and  healthy;  but  plaintiif 
says,  that  said  Sarah  Ann,  at  the  time  of  said  sale  and 
warranty,  was  not  sound  or  healthy,  but  was  diseased, 
unhealthy,  and  worthless;  whereby  defendants  beeame 
liable  to  plaintiff  in  an  action  at  law;  in  consequence 
whereof,  defendants  agreed,  on  the  7th  July,  1857,  to  pay 
plain tifi  81300,  and  to  take  said  slave  back,  and  to  go  OT 
send  |t«»J  plaintiff  for  her,  and  plaintiif  agreed,  on  hie 
part,  to  deliver  her  up  to  defendants  when  desired;  but 
plaintiff'  says,  that  defendants  utterly  failed  and  ref 

>  or  -end    for   laid  slave,  or  to  pay  plaintiff  said  .-inn 
oi  money;   whereupon,   plaintiff  tendered   aaid  slave    to 


240  SUPREME  COURT 


.  Watson. 


ndants,  but  they  failed  and   refused  to  receive  her,  or 
t<.  pay  said  Bum  of  money,  or  any  part  thereof. 

"The  plaintiff  claims  of  the  defendants  the  further 
sum  of  81^00,  for  that  the  plaintiff,  on  the  Gth  March, 
1857,  purchased  of  the  defendants  the  negroes  above 
named,  for  the  sum  of  $3150,  (all  of  which  was  paid  at 
the  time,)  and  the  defendants  then  and  there  executed 
and  delivered  to  plaintiff  their  bill  of  sale  for  said  slaves, 
warranting  them  to  be  sound  and  healthy;  but  plaintiff' 
avers,  t,hat  said  slave  Sarah  Ann,,  at  the  time  of  said 
sale  and  delivery,  was  diseased,  unsound,  and  worthless  ; 
iu  consequence  whereof,  plaintiff,  on  the  1st  June,  1857, 
returned  her  to  defendants,  and  rescinded  said  sale  as  to 
said  slave;  by  means  whereof,  defendants  became  liable 
to  an  action  at  law,  in  favor  of  the  plaintiff;  in  consider- 
ation whereof,  defendants  agreed  to  pay  plaintiff  the  sum. 
of  31300,  but  they  have  failed  and  refused  so  to  do." 

(The  three  remaining  counts  of  the  amended  complaint 
are  the  common  counts  for  money  had  and  received, 
money  paid,  laid  out  and  expended,  and  work  and  labor 
done.) 

The  judgment-entry  recites,  that  the  defendants  de- 
murred, in  short  by  consent,  to  the  entire  complaint,  and 
to  each  count  thereof;  that  the  assignment  of  special 
^rounds  of  demurrer  was  waived:  that  the  court  sus- 
tallied  the  demurrer  "as  to  the  first  two  counts  in  the 
complaint,"  and  overruled  it  as  to  the  remaining  count* 
and  the  whole  complaint;  and  that  the  defendants  then 
pleaded  the  general  issue,  "with  leave  to  give  any  speeial 
matter  in  evidence,  and  with  like  leave  to  the  plaintiff  in 
reply."  # 

On  the  trial,  as  appears  from  the  bill  of  exceptions, 
the  plaintiff  read  in  evidence  to  the  jury,  after  proving 
its  execution,  the  defendants'  bill  of  sale  for  the  slaves, 
which  was  dated  the  6th  March,  1857,  contained  a  war- 
ranty that  the  slaves  were  sound  and  healthy,  and  de- 
scribed the  girl  Sarah  Ann  as  "a  seamstress  woman, 
about  twenty-four  years  old;"  and  thou  offered  in.  evi- 


OF  ALABAMA.  241 


Stone  &  Best  v.  Watson. 


deuce  the  deposition  of  Dr.  B.  C.  Jones,  which  was  taken 

on   interrogatories  and  cross-interrogatories.     The  third 

direct  interrogatory  tp   this   witness  was  in  these  words: 

?*Int.  3.      What  would  said  girl  have  been  worth,  when  you, 

first  visited  her,  if  she  had  been  sound,  taking  into  consider^ 

Hon  I  In  fact  that  she  was  a  No.  1   seamstress  .'  what  was  she 

worth,  at  that  time,  in  the  condition  in  which  she  realty  was  ? 

what  would  she  have  been  worth,  on  the  6M  March,  1857,  if 

she  had  been  sound,  and  a  r/ood,  No.  1  seamstress  ?  what  was 

she  worth,   at  that  time,   in    her  then   condition   as  to 

health?"     The  defendants  objected,  at  the  time  of  tiling 

cross-interrogatories,  to  each  of  the  italicized  portions  of 

this   interrogatory,   and   renewed   their  objections  at  the 

trial;  but  the  court  overruled  each  of  the  objections,  and 

'hey   excepted.     Another  interrogatory   to   this  witness 

ailed  on  him  to  state  "by  whom,  at  whose  request,  and 

s  whose  property,   he  was  called  iu   to  attend  the  girl' 

arah  Ann;"  and  exceptions  were  reserved  by  the  defend- 

lts  to   the  overruling  of  their  objections   to  this  inter- 

gafbry.     The  witness  testified,  in  substance,   that  he- 

m  called  in  by  plaintiff,  in  May  or  June,  1857,  to  pre- 

;ibe  for  the  girl  Sarah  Ann  ;  that  he  then  found  she  had 

slight  disease  of  one  of  her  lungs,""  which,  he  thought, 

ist  have  existed   on   the  6th  March,  1857;  and  that  he 

s  afterwards  called   in  to  prescribe  for  her  on  account 

a  barn  on  her  left  arm.    The  bill  of  exceptions  states, 

vt  "there  was  no  proof  as  to  the  qualities  or  aeqaire- 

■nts  of  said  negro,  other  than  the  statement  in  the  bill 

sale  that  she  was  a  seamstress." 

"The  plaintiff  introduced  evidence,  also,  tending  to 

ow  an  agreement    between   him  and  the   defendants, 

in   Talladega,   where   the   defendants    lived,    some 

after  the  sale,  (the  negro  being  then  in  the  plaintiff's 

>n,  in  the  city  of  Montgomery,)  by  which   it  was 

od  that,  if  said  negro  was  aosouud  at  the  time  of  the 

to  plaintiff,   defendants  would   take  her  back,  aud 

mild  pay  plaintiff  J 1250,  by  way  of  expenses,  and  her 

Wwc  from   Montgomery  to  Talladega:  bat,  as  to 

hut  this  contract  was,  there  was  a  conflict  in  the  proof, — 


242 SUPREME  COURT 

Stone  &  Best  v.  Watson. 


BOme  of  the  evidence  tending  to  show,  that  the  defend- 
ants agreed  to  take  her  back,  and  to  pay  as  above  stated, 
if  she  was  unsound  at  the  time  of  the  sale,  and  was  de- 
livered to  them,  in  Talladega,  in  the  condition  she  was 
at  the  time  of  the  sale.  At  the  time  this  agreement  was 
made,  (whatever  it  was,)  the  negro  had  not  been  burned; 
but  afterwards,  while  she  was  in  the  plaintiffs  negro- 
house  in  Montgomery,  and  under  the  charge  of  one  Ball, 
plaintiff's  agent,  she  received  a  burn  upon  her  left  arm, 
by  the  explosion  of  a  fluid  lamp,  which  was  kept  in  said 
negro-house  by  said  Ball,  and  which  she  was  at  the  time 
attempting  to  use;  and  all  the  evidence  tended  to  show, 
that  her  permanent  value  was  thereby  decreased  one  half, 

or  more.     Some days  after  she  was  thus  burned, 

said  negro  was  sent,  by  plaintiff's  agent,  or  by  his  direc- 
tions, on  the  stage,  to  Talladega,  where  she  was  tendered 
to  the  defendants,  who  refused  to  receive  her,  or  to  pay 
the  $1250.  Said  Ball  testified,  in  behalf  of  the  plaintiff, 
that  he  was  in  plaintiff's  negro-house,  acting  as  his  agent, 
when  said  negro  was  purchased  by  plaintiff,  and  came  to 
said  house;  and  that  said  negro,  when  she  came  to  said 
house,  coughed,  looked  sick,  and  complai»ed  to  ivilness  of  a 
pain  iii  her  breast,.  It  being  admitted  that  this  witness 
was  not  a  physician,  the  defendants  objected  to"  the 
italicized  portions  of  his  evidence,  as  being  illegal  and 
irrelevant,  and  reserved  exceptions  to  the  overruling  of 
their  objections.  "This  witness  further  testified,  that  the 
v.egro  was  not  allowed,  by  a  rule  of  the  house,  to  use  saidiamp, 
in  using  which  she  was  burned;  that  Dr.  B.  0.  Jones  was 
called  in  to  attend  her^  and  treated  the  burn  several  days; 
that  when  he  was  about  to  send  the  negro  to  Talladega, 
he  consulted  J)r.  Jones  as  to  whether  it  would  be  safe  te  send 
her  by  lid'  stage;  and  thai  Dr.  Jones -tola  him,  in  his  opinion 
it  would  be  safe  to  send  her  to  Talladega  on  the  stage."  The 
defendants  objected  to  each  of  the  italicized  parts  of  this 
evidence,  on  the  ground  ot  illegality  and  irrelevancy,  and 
reserved  exceptions  to  the  overruling  of  their  objections. 
On  cross-examination  of  one  Thomason,  one  of  defend- 
ants' witnesses,  who  had  stated  that  he  knew  the  negro 


OF  ALABAMA. 243 

Stone  k  Best  v.  Watson. 

in  controversy,  the  court  permitted  the  plaintiff'  to  ask 
him,  against  the  defendants'  objection,  what  was  the 
value  of  the  negro  at  the  time  of  the  trial,  which  was  in 
May,  1859 ;  and  the  witness  having  answered,  "that  he 
did  not  know  the  qualities  of  the  girl  of  his  own  know- 
ledge, but  knew  them  from  reputation;"  the  court  per- 
mitted the  plaintiff  to  ask  him,  against  the  defendants' 
objection,  "what  would  be  her  value,  if  sound,  if  she  pos- 
sessed those  qualities  which  she  was  reputed  to  possess;" 
and  the  defendants  reserved  exceptions  to  each  of  these 
rulings  of  the  court. 

The  court  also  permitted  the  plaintiff  to  read  in  evi- 
dence to  the  jury  Dr.  Jones'  account  for  medical  services 
rendered  to  the  slave,  on  proof  of  the  doctor's  signature 
to  the  receipt  acknowledging  payment  by  the  plaintiff. 
The  defendants  objected  to  the  admission  of  this  evi- 
dence, "on  the  grounds  that  it  was  illegal,  irrelevant, 
calculated  to  mislead  the  jury,  and  because  there  was  no 
proof  .that  the  amounts  charged  were  reasonable  and 
proper,  and  because  there  was  not  sufficient  proof  that 
the  plaintift"  had  paid  said  accounts;"  and  reserved  ex- 
ceptions to  the  overruling  of  these  several  objections. 

The  several  rulings  of  the  court  on  the  pleadings  aud 
evidence,  as  above  stated,  are  now  assigned  as  error. 

IIeflin,  Martin  &  Forney,  for  appellants. 
L.  E.  Parsons,  and  Jno.  White,  contra. 

A.  .).  WALKER,  C.  J.— [March  7,  1861.]— In  the 
original  pnd  amended  complaint, addingadditional  counts, 
there  were  nine  counts.  The  record  informs  us,  that  the 
defendants' demurrer  to  the  first  two  counts  was  sustained, 
and  that  it  was  overruled  aa  to  the  remaining  counts. 
From  this  we  understand,  that  the  demurrer  was  sus- 
tained as  to  the  single  count  in  the  original  complaint, 
and  as  t<*  tin;  first  COUQt  in  the  amended  complaint,  and 
that  it  waa  overruled  as  to  the  last  seven  counts  in  the 
amended  complaint. 

[2.]  Two    reasons    are    urged,   why    the   court  below 


:  SUPREME  COURT 

Stone  ft  Best  v.  Watson. 


erred  in  so  overruling  the 'demurrer  to  the  seven  counts. 

The  first  reason  is.  that  the  averment  of  tlic  nnsouud 

pf  the   slave   is   the   statement  of  a  conclusion,  and  that 

therefore  it  was  necessary  for  the  pleader  to  have  all 

in  what  the  unsoundness  consisted.     From  this  argument 

we  must  dissent;  for  we   regard  unsoundness  as   a  fact, 

which  may  appropriately  be  averred  in  pleading. 

[o.]  The  second  reason  urged  in  support  of  the  demur- 
rer, is,  that  the  counts  are  misjoined,  becauSe  some  of 
them  require  a  special  breach,  while  others  do  not. — 
Code,  §  2235.  This  argument,  we  think,  is  also  unsound, 
for  we  do  not  regard  either  of  the  counts  as  requiring  a 
special  breach,  in  the  sense  in  which  that  phrase  is  used 
in  the  above  cited  section  of  the  Code.  * 

[4.]  In  ascertaining  the  damages  resulting  from  the 
breach  of  warranty  of  soundness,  the  proper  inquiry,  of 
course,  was  as  to  the  value  of  the  slave  at  the  time  of  the 
sale.  But  it  was  permissible  to  prove  what  her  value  was 
a  few  months  afterwards,  as  reflecting  light  upon  the  ques- 
tion of  her  value  at  the  time  of  the  sale. — Ward  v.  Rey- 
nolds, 32  Ala.  384.  There  was,  ibeieiore,  no  error  in 
overruling  the  first  three  objections  to  the  interrogatories 
propounded  by  the  plaintiff  to  Dr.  B.  C.  Jones. 

[5.]  The  defendants  objected  to  an  interrogatory  to 
the  witness  Jones,  inquiring  what  would  have  beeu  the 
value  of  the  slave,  if  she  had  been  sound  and 
"«  good,  No.  1  seamstress.'"  It  was  certainly  proper 
to  prove  the  value  of  the  slav«  with  her  qualities  upon 
the  hypothesis  of  her  soundness.  The  bill  of  sale  made 
by  the  defendants  to  the  plaintiff  represented  the  slave  to 
be  a  seamstress,  but  did  not  specify  that  she  was  a  seam- 
Btreas  of  quality  Jfxiown  as  No.  1.  We  think  it  probable, 
that  the  fact  that  the  negro's  quality  as  a  seamstress  was 
made  the  subject  of  a  special  and  formal  description 
in  the  bill  of  sale,  authorized  an  argument  to  the  jury 
that  she  possessed  some  eminence  of  skill  as  a  seamstress, 
and  might  be  classed  as  No.  1.  If  there  was  any  ten- 
dency of  proof  to  show  that  she  was  a  '"No.  1  seamstress," 
it  was  permissible  to  inquire  as  to  her  valine  upon  that 


OP  ALABAMA.  245 


Stone  &  Best  v.  Watson, 


supposition.  We  decide,  though  with  some  doubt,  that 
there  was  in  the  statement  of  the  bill  ipf  sale  such  ten- 
dency of  proof,  and  that  therefore  there  was  no  error  in 
overruling  the  fourth  objection  to  the  plaintiff's  inter- 
rogatories to  Jones.  ♦ 

[6.]  The  evidence  of  Thorn ason,  as  to  the  value  of  the 
slave  according  to  the  qualities  which  she  was  reputed  to 
possess,  was  manifestly  inadmissible.  The  legitimate 
inquiry  was,  her  value  upon  the  supposition  of  the  quali- 
ties which  she  did  possess,  and  not  of  those  she  was  re- 
puted to  possi 

[7.]  The  inquiries  of  the  witness  Jones,  as  to  the  per- 
son by  whom,  and  at  whose  request,  he  was  called  to 
visit  the  slave  in  her  illness,  and  as  whose  property  he 
visited  her,  were  calculated  to  elicit  information  of  the 
facts  necessary  to  sustain  the  plaintiff's  claim  for  dama- 
ges on  account  of  a  medical  bill  contracted  in  treating 
her  disease.  The  objection  to  that  inquiry  was,  there- 
fore, properly  overruled. 

The  court  erred,  however,  in  admitting  in  evidence  the 
BCCouut  of  Dr.  B.  C.  Jones,  there  being  no  evideuce  of 
its  correctness*  The  account  could,  noon  no  principle  of 
law,  be  admissible,  until  it  was  proved  that  the  services 
rendered  as  charged,  and  that  the  charges  were  cor- 
rect. Besides,  the  account  could  not  be  evidence,  unless 
it  was  contracted  for  the  treatment  of  a  disease  which 
the  slave  had  at  the  time  of  the  sale. 

[s.]  Evidence  that   the   slave    looked  sick,  conduced  to 
blish  a  fact,  which  was  one  of  the  material  matters  in 

The  appearan f  a  slave  is  certainly  a  fact,  and 

i  conclusion,  and  is   susceptible  of  proof  by  one  not 
an  expert,  who  has  seen  the  slave. 

[!».]  The  declaration  of  the  slave,  as  to  the  present  cx- 

•  f  a  pain   in   her  breast,  was  clearly  admissible; 

and  the  point  has  boen   repeatedly  so  adjudged  by  this 

court— Wilkinson    v.  Moseley,  80   Ala.   5(32;    Barker  v. 

Coleman,  35  Ala.  221. 

[10.]  At  least  under  some  of  the  counts  in  the  com- 
plaint, evideuce  as  to  whether  the  burning  of  the  slave 


246 SUPREME  COURT 

Polly  v.  McCall. 


caused  by  the  plaintiff's  negligence,  was  admissible. 

1  Parsons  on  Con.  445.  To  this  question,  the  fact  that 
the  slave  was,  by  a  rule  of  the  house  in  which  she  was 
kept  by  plaintiff,  not  allowed  to  use  the  lamp,  in  using 
which  she  was  burnt,  was  clearly  pertinent,  and  there 
was  no  error  in  admitting  that  fact  in  evidence.  And  so, 
also,  in  the  same  point  of  view,  the  fact  that  the  plaintiff 
consulted  a  physician,  as  to  the  prudence  and  safety  of 
sending  the  slave  to  Talladega;  and  that  Dr.  Jones,  being 
a  physician  who  had  treated  her  ease,  advised  him  that 
she  might  be  safely  sent,  would  be  competent  evidence 
upon  the  question,  whether  the  defendant  was  guilty  of 
any  negligence  i ti  sending  the  slave  to  Talladega.  The 
unsworn  opinion  given  by  Dr.  Jones  weuld  not  be  evi- 
dence that  it  was  safe  to  so  send  the  slave;  but  the  fact 
that  he  was  consulted,  and  so  advised,  has  a  direct  bear- 
ing upon  the  question,  whether  the  plaintiff  acted  care- 
lessly and  incautiously. 

We  deem  it  proper  to  observe,  in  reference  to  the  Gth 
count,  which  avers  a  delivery  of  the^tave  to  the  defend- 
ants, and  an  agreement  on  their  part  to  pay,  in  consider- 
ation   thereof,  the  sum  of  thirteen   hundred  dollars,  that 

» 

wo  regard  it  as  showing  a  rescission  by  consent  of  both 
parties,  and  that  we  must  not  he  understood  as  affirming 
that  it  is  good  as  a  count  for  a  rescission  against  the 
wishes,  ami  without  the  consent  of  the  defendants. 

Reversed  and  remanded. 

Stone,  J.,  not  sitting. 


POLLY  vs.  McCALL. 

[ACTIOS  TO  RECOVER  DAMAGES  FOB  OVEBFI.OW  OF   LAND.] 

1.  Admission  of  our.  defendant,  in  action  agninst  t":,)- — in  an  action 
(0  against  two  defendants,  the  admissions  of  one,  being  competent 


OF  ALABAMA.  247 


Polly  v.  A'lcCall. 


evidence  against  the  maker,  cannot  be  excluded  from  the  jury  on 
motion:  his  co-defendant  must  limit  their  operation  by  a  request 
for  proper  instructions  to  the  jury. 

2.  Proof  of  written  notice. — In  an  action  to  recover  damages  for 
overflowing  land,  proof  of  a  written  notice  hy  plain  tiff  to  defendant 
requiring  an  abatement  of  the  ditch  and  levee  by  which  the  over- 
flow was  caused,  being  collateral  to  the  issue,  is  within  the  excep- 
tion to  the  general  rule  in  regard  to  the  proof  of  writings ;  am!  the 
contents  of  such  notice  may  be  proved  by  oral  testimony,  without 
producing  the  writing,  or  accounting  for  its  non-production. 

3.  Pi atcriptive  easement, — A  tolerated  or  permissive  user  of  an  ease- 
ment csti  never  ripen  into  a  title  by  prescription,  while  a  user 
which  is  adverse,  independent,  or  as  of  right,  if  continued  for  a 
period  corresponding  with  the  statutory  bar  to  a  right  of  entry 
upon  land,  will  confer  an  absolute  right;  but  the  use  of  a  ditch 
and  levee,  on  a  party's  own  land,  which  is  in  itself  rightful,  cannot 
confer  a  prescriptive  right  to  injuriously  overflow  the  lands  of  an 
adjacent  proprietor  many  years  afterwards,  when  the  ditch  has  be- 
come gradually  filled  up  with  the  sand  and  dirt  accumulated  and 
deposited  therein  by  the  continued  flow  of  water. 

4.  Limitation  of  action. — Under  the  provisions  of  the  Code,  (\  2481, 
subd.  G.)  one  vear  is  the  bar  to  an  action  to  recover  damages  for 
overflowing  lands.   ^, 

ft.  Damages,  and  evidence. — In  an  action  to  recover  damages  For  over- 
flowing lands,  a  recovery  cannot  be  had  for  injuries  accruing  after 
the  commencement  of  the  suit;  but  evidence  of  such  injuries  is 
admissible,  with  a  view  of  affording  information  to  the  jury  of  the 
consequences  of  the  diversion  under  similar  circumstances  before 
suit  brought. 

of  proof. —  If  a  person  diverts  water  from  its  natural  chan- 
.nel,  by  means  of  a  ditch  ami  levee  on  his  own  lands,  and  thereby 
injuriously  overflows  the  lands  of  an  adjacent  proprietor;  and  this 
injury  continue*,  without  increase,  for  ten  years, — the  jury  may 
infer  from  these  facts,  in  the  absence  of  all  other  evidence,  that 
the  use  wan  adverse,  and  of  right. 

nrge  to  ./">//,  if  correct,  mutt  be  given  as  ashed, — Since  the  statute 

imperatively  requires,  that  a  charge  to  the  jury,  if 

correct  and  not  abstract,  m  n  in  the  language  in  which  it 

is  asked,  the  doctrine  of  error  withoul  injury  cannot  be  applied  to 

Mich  charge,  although  the  legal  proposition  embi 
in  it  tanlially  enunciated  id  another  charge  giv<  n  by  the 

irt. 

Appeal  from  the  Circa  it  Court  of  Lowi 
Tried  before  the  Hon.  Kobbrt  Dougherty. 


24*  SUPREME  COURT 


Polly  v.  BfcCalL 


tion  was  brought  by  Mrs.  Mary  McCall,  against 
Thomas  Polly  and  James  K.  Whitman,  to  recover  dama- 
>verflowing  of  plaintiff's  lands  by  the  defend- 
ants'  diversion  <>t  water  from  its  natural  channel.  The 
defendants  pleaded  ''the  general  issue,  and  the  statute  of 
limitations,"  in  short  by  consent ;  and  the  cause  was  tried 
on  issue  joined  op  these  pleas.  The  f-ie4"^  of  the 
stated  in  the  bill  of  exceptions,  are  these: 

"The  plaintiff  proved  her  possession  and  ownersnip 
the  lands  described  in  the  complaint,  and  then  offered 
evidence  showing  thai  one  Abercrombic  owned  land-  ad- 
joining hers  on  the  west  and  north;  that  the  defendants' 
lands,  which  cornered  hers  on  the  north-west,  were  once 
owned  by  one  Bethea;  that  a  spring  branch,  which  ai 
on  :i  different  part  of  plaintiff's  plantation,  flowed  north- 
ward through  Abercrombie'e  lands  on  the  west,  and  then 
through  Bethea's  said  lands,  and,  in  its  natural  flow  and 
condition,  did  not,  nor  did  any  of  the  waters  from  the 
same,  ■  ver  run  upon  or  through  any  part  of  the  land-  of 
plaintiff  described  in  the  complaint;  that  said  Bethea,  in 
1841  oi  1842,  eut  a  ditch,  and  threw  u,>  a  levee  on  the 
north  Bide  thereof,  al"ong  the  south  line  of  his  said  land; 
that  aid  ditch  and  levee  ran  east  and  west,  and  termina- 
ted near  the  mnth  weal  comer  of  plaintiff's  said  lands, 
commencing  at  n  point  west  of  said  branch,  and  crossing 
the  -aine  nearly  at  right  angles:  that  there  was  a  break, 
or  channel,  leaving  said  branch  about  eighty  yards  above 
Baid  ditch,  running  in  a   north-eastern    direction,  and  in- 

pting  Bethea's  line;  but  the  evidence  was  conflicting, 

as  to  whether  this  break  was  a  natural  channel,  existing 

»re  said  ditch  was  made,  or  whether  it  commenced  af- 

inl  ditch  was  made,  and  w.is  caused  hy  the  damming 
up  of  the  water-  of  the  branch  by  the  ditch  and  levee. 
The  evidence  wae  also  conflicting,  as  to  whether  <>r  not 
Bethea,  when  he  built  the  ditch  and  levee,  left  an  open- 
ing al  the  original  channel  for  the  water  to  pass  through; 
but  the  evidence  showed  that  he  left  no  such  opening  for 
the  water  passing  through  the  break,  and  that  none  of 
the  waters  of  said  branch  in  their  natural  flow,  either 


OF  ALABAMA. 


249 


Polly  v.  McCall. 


through  the  break  or  through  the  original  channel,  ever 
ran  upon  the  plaintiff's  said  lauds;  and  that  the  water 
which  naturally  ran  upon  Bethea's  said  lands,  or  at  least 
a  large  portion  of  the  same,  was  diverted  from  .his  lands 
by  sai^  ditch  and  levee,  and  thrown  at  the  corner  of 
plaintiff's  lands  above  mentioned.  The  following  dia- 
gram shows  the  relative  positions  of  said  lauds,  branch, 
ditch,  break,  &c. : 


N. 


Bethea's  Land 


w- 


-'  Pitch  and  Levee. 
V'""  ...  ..-...■. 


Abercrombie's  Land. 


A. 


Abercrombie's  Land. 


E, 


McCall's  Land. 


S. 


"The  evidence  further  tended  to  show,  that  when  said 
ditch  and  levee  were  originally  constructed,  the  water 
thereby  diverted  from  Bethea's  land  was  nearly  all  thrown 
upmi  the  lands  of  Abercrombie,  at  the  point  marked  .1, 
which  was  lower  than  plaintiff's  adjoining  lands;  hut 
thai  a  little  water  would  run  npon  the  corner  of  plaintiff's 
land-,  near  said  point,  in  time  of  floods,  although  no  per- 
ceptible damage  was  thereby  done  to  plaintiff's  said  lands 
until  the  year  lv">7;  and  that  the  low  place  at  said  point 
on  Abercrombie's  land  had  become  filled  op,  about  the 
beginning  of  the  year  1857,  by  the  sand  and  gravel  which 
had  been  thrown  upon  it  by  said  w;it"i\  until  it  became 
higher  than  plaintiff's  adjoining  land,  and  the  water  then 
n  to  flow  in  large  quantities  upon  plaintiff's  land, 
bringing  with  it  large  quantities  of  sand,  which  wa 
posited  upon  plaintiff's  land;  and  thai  said  land,  which 
wa-  in    cultivation    VI  1    ditch    was   dug,  and    I 

that  continuously  up  to  the  beginning  of  this  suit,  was 
thereby  damaged    and    injured.     The  evidence   farther 
that  in  1842,  and    tor    more  than  ten 
17 


250  SUPREME  COURT 

• 

Polly  v.  McCall. 


wards,  tlie  defendant  Polly  acted  as  Abercro mine's  agent 
as  to  his  lands  at  the  point  in  controversy:  and  the  plain- 
tiff proved  an  admission  by  said  Polly,  made  in  18-44  or 
1845,  that  Bethea's  diversion  of  water  by  said  ditch  and 
levee  greatly  injured  both  plaintiff  and  said  Abercr^rnbie, 
and  waa  a  great  outrage;  that  Abercrombie,  in  1843,  had 
sued  Bethea  for  the  damage  done  to  his  land  by  said  ditch 
and  levee,  and  had  recovered  $50  damages ;  that  Bethea 
then  promised  to  abate  the  ditch  and  levee,  and  to. allow 
the  water  to  flow  in  its  natural  channel;  and  that  he  did 
some  work  for  that  purpose  in  1845-46,  which  was  inef- 
fectual. The  defendants  objected  to  the  admission  as 
evidence  of  Polly's  said  admissions;  the  court  overruled 
the  objection,  and  admitted  the  evidence;  and  the  de- 
fendants excepted.  The  plaintiff  also  proved,  by  the 
admissions  of  said  Polly  in  1849,  that  Bethea  was  then 
promising  to  abate  said  ditch  and  levee,,  and  thereby  to 
prevent  the  diversion  of  said  water  as  aforesaid. 

"The  evidence  further  showed,  that  said  Bethea  died 
in  1851;  that"  in  January,  1857,  the  devisee  under  his  will 
sold  said  lands  to  the  defendants,  who  immediately  went 
into  the  possession  thereof,  and  owned  and  held  them  ever 
since.  The  evidence  also  tended  to  show,  that,  although 
said  Bethea  made  some  ineffectual  attempts  to  turn  the 
water  from  plaintiff's  land,  he  never  did  so;  that,  although 
the  ditch  dug  by  him  nearly  tilled  up  by  the  lapse  of  time, 
yet  he  suffered  and  permitted  said  levee  to  remain ;  that 
the  obstruction  thereby  caused  to  said  waters  continued 
to  divert  them  at  the  point  above  mentioned,  and  the 
same  was  suffered  and  permitted  to  continue  until  the 
defendants  became  the  owners  of  said  lands;  and  that 
they  suffered  and  permitted  the  same  to  continue  up  to 
this  time,  although  they  could  have  prevented  said  water 
from  upon  plaintiff's  said  land,  by  removing  the 

obstructions  aforesaid,  and  permitting  the  water  to  flow 
in  its  natural  channel  upon  their  own  land.  The  plaintiff' 
offered  a  witness  who  tcstiiied,  that  in  March,  1S57,  as 
the  agent  of  the  plaintiff,  he  handed  the  defendants  a 
written  notice  from  the  plaintiff,   notifying  them  that 


OF  ALABAMA.  251 


Pollv  v.  McCaJl. 


their  continuance  of  the  obstruction  of  the  natural  llow 
of  said  water  was  injuring  her  land's,  and  requiring  them 
to  remove  or  abate  the  same.  The  defendants  thereupon  J 
■objected  to  the  witness  testifying  in  relation  to  said  no- 
tice, unless  the  writing  was  produced,  or  its  absence  ac- 
counted for.  The  defendants  had  uot  been  previously 
notified  or  'requested  to  produce  the  writiug;  but  they 
Were  in  court  when  the  objection  »was  made,  and  the 
plaintiff's  counsel  then  stated,  that  he  wished  them  to 
produce  it,  if  they  had  it.  The  court  overruled  the  ob- 
jection, and  the  defendants  excepted.  The  witness  further 
testified,  that  about  the  same  time,  as  the  plaintiff's  agent, 
he  had  given  the  defendants  a  verbal  notice  to  the  same 
effect. 

"The  plaiutiff  proved,  separately,  the  damage  sustained 
by  her  in  the  use  of  said   land  overflowed  by  said  water, 
and  in  the  injury  to  her  crop  growing  thereon,    during 
the  period  of  one  year  before  the  commencement  of  the 
suit,  and  also  the  damage   done  to  the  land  during  the 
same  period;  and  then  offered  to  prove  the  injury  to  the 
land  by  the  overflowing  thereof  since  the  commencement 
of  the  suit.     The  defendants  objecting  to  the  allowance  of 
this  proof,  the  court  thereupon  decided,  that  the  plaintiff 
•could  not  recover  for  any   injury   or  damage   since  the 
commencement  of  the  suit,  but  that  the  evidence  might 
Quitted  with  the  view  of  throwing  light  upon   the 
question  as  to  the  injury  or  damage  within  one  year  be- 
fore the  suit  was   brought,  and  for  thi  e  alone; 
and  then  overruled  the  defendants'  objection,  and  admit- 
ted the   evidence  for  this  purpose;  to  which  tlu 
ants  excepted.     The  court  also  Btated,  at  the  time  of  ad- 
mitting this  evidence,  that  the  jury  would  be  instructed 
on  the   subject    at    the  proper  time;  and  in  charging  the 
jury,    t!io  court  distinctly  told   them,  that    the 
could  not  recover   for  any  injury  or  damage  done  oi 
taiiu-d  since  the  suit   was  brought,  but,   if  entitled  to  re- 
cover  at   all,  could    only   recover  inch   damages   as  I 
Accrued    to    her    within    one    year    b    -  >.        !;e    sail 
brought." 


SUPREME  COURT 


Polly  v.  McCall. 


"Therewasno  evidence  in  the  cause  showing,  or  ten  ding 

to  show,  that  said  Bethea,  or  an}'  other  person,  ever 
claimed  or  asserted  any  right  to  overflow  the  lands  of 
plaintiff  or  said  Abererombie  by  said  ditch  and  levee, 
except  the  evidence  above  set  out.  The  defendants  in- 
sisted on  the  trial,  that  the  plaintiff's  right  was  barred  by 
the  adverse  enjoyment  and  user  of  the  ditch  and  levee  by 
Bethea  and  those  claiming  under  him.  The  court  charged 
the  jury,  among  other  things,  'that  neither  Bethea,  nor 
those  who  held  under  him,  could  acquire  the  right  to 
overflow  the  plaintiff's  lands  by  prescription,  unless  they 
satisfied  the  jury  by  the  evidence,  not  only  that  he- or 
they  had  overflowed  plaintiff's  lands  for  a  period  of  ten 
years  before  this  suit  was  brought,  but  that  this  wasdone 
as  of  r'ght;  and  that  the  burden  of  showing  this  affirma- 
tively was  upon  the  party  setting  up  the  prescription.' 
The  defendants  excepted  to  this  charge,  and  then  re- 
quested the  court  to  instruct  the  jury  as  follows: 
(1-i  )  -That  if  the  ditch  and  levee  erected  by  Bethea  in 
lS4f-[2  flowed  water  or  sand  upon  plaintiff's  hinds,  and 
she  knew  that  fact,  and  that  this  flow  of  water  and  sand 
commenced  at  a  period,  and  continued,  more  than  ten 
years  before  the  commencement  of  this  suit,  then  the 
plaintiff  is  not  entitled  to  recover.'  (2d.)  "That  if  the 
injury  complained  of  occurred  more  than  oneyear  before 
the  beginning  of  this  suit,  then  the  plaintiff  is  not  enti- 
tled to  recover."  The  court  refused  each  of  these  charges, 
and  the  defendants  excepted  to  their  refusal." 

The  rulings  of  the  court  to  which  exceptions  were  re- 
served by  the  defendants,  as  above  stated,  are  now 
;  as  error. 

J.  F.  Clements,  with  whom  were  R.  M.  Williamson, 
and  Geo.  S.  Cox,  for  appellants. — 1.  The  court  erred  in 
allowing  the  plaintiff's  witness  to  speak  of  the  written 
notice,  without  producing  the  paper,  or  accounting  for 
its  absence. — Boykin,  McRae  &  Foster  v.  Collins,  20  Ala. 
230;  Wiswall  v.  Knevals,  Hall  k  Townsend,  1-  Ala.  65. 
The  tact  that  the  witness  further  testified  to  the  service 


OF  ALABAMA.  253 


Polly  v.  McCall. 


of  a  verbal  notice,  did  not  cure  the  error  in  the  admission 
of  the  evidence;  for  that  would  be  to  allow  to  allow  the 
witness  to  decide  upon  the  effect  of  the  written  notice. 

2.  The  admissions  of  Polly  in  184&  were  illegal  and 
irrelevant,  and  ought  to  have  beet:  excluded. 

3.  The  admission  of  proof  as  to  the  damage  done  after 
the  commencement  of  the  suit,  was  without  legal  au- 
thority; and  the  injury  done  by  it  was  not  cured  by  the 
charge  of  the  court. — Langford  v.  Owsley,  2  Bibb,  215; 
Shaw  v.  Etheridge,  3  Jones'  Law,  300  ;  Duncan  v.  Mark- 
ley,  Harper,  276. 

4.  The  charge  given  by  the  court  instructed  the  jury, 
in  effect,  that  the  defendant  was  bound,  in  order  to  make 
out  his  prescriptive  right,  to  adduce  other  evidence  thau 
the  user  itself;  thereby  violating  the  recognized  principle, 
that  the  jury  may  presume  the  user  to  have  been  of  right 
from  the  mere  fact  that  it  was  enjoyed  for  a  period  of 
ten  years. — Esling  v.  Williams,  10  Barr,  126;  Stein  v. 
Burden,  24  Ala.  130,  and  authorities  there  cited.  As  to 
a  prescriptive  right  to  divert  water  from  its  natural  chan- 
nel, sec  Middleton  v.  Gregorie,  2  Rich.  G31;  Tyler  v. 
Wilkinson,  4  Mason,  397;  Smith  v.  Smith,  3  Halsted, 
140;  Trask  v.  Ford,  30  Maine,  439;  Bullen  v.  Runnels, 
2  N.  II.  2 

5.  The 'first  charge  asked  and  refused,  asserted  a  cor- 
rect legal  proposition,  and  was  necessary  to  the  protec- 
tion of  the  defendants'  rights  before  the  jury.  The  fact 
that  the  plaintiff  knew  of  the  diversion  and  overflow,  war- 
ranted the  presumption  that  she  acquiesced  in  it;  and  her 
long  acquiescence  authorized  the  inference  of  a  grant  or 
eight.— Campbell  v.  Wilson,  3  Fast,  294;  Tyler  v.  Wil- 
kinson, 4  Mason,  402;  Angel  on  Water-Courses,  §§  200- 
218. 

Baine  &  NeSmith,  contra.— 1.  As  to  the  admissibility 
of  parol  proof  of  the  written  notice  given  by  plaintiff  to 
defendants,  see  2  Phil.  Fv.  225;  iU>,  188,  and  cas 

2.  As  to  the  admissibility  of  evidence  of  damage   ac- 


254  SUPREME  COURT 


Polly  v.  MoCall. 


eruing  after  the  commencement  of  the  suit,  for  the  single 
purpose  for  which  it  was  admitted  by  the  court,  see  Stein 
v.  Burden,  24  Ala.  130. 

3.  The  affirmative  charge  of  the  court  enunciated  two 
legal  propositions,  each  of  which  is  firmly  established  by 
a  long  chain  of  adjudications:  1st,  that,  in  order  to  give 
a  title  to  an  easement  by  prescription,  the  enjoymeut 
must  be  as  of  right;  and,  2d,  that  the  burden  of  proving 
this  rests  on  the  party  who  sets  up  the  prescription. — 
1  Greenl.  Ev.  §  539;  Angell  on  Water- Courses,  §§  216- 
221;  Brown  v.  King,  5  Metcalf,  181;  Sargent  v.  Bullard, 
9  Pick.  251;  Mebane  v.  Patrick,  1  Jones'  Law,  25;  In- 
graham  v.  Hough,  ib.  39;  Felton  v.  Simpson,  11  Iredell, 
85;  A;\gell  on  Limitations,  §  390.  The  charge  does  not, 
xnressly  or  by  implication,  withdraw  from  the 
jury  the  right  to  consider  all  the  evidence  in  determining 
whether  the  enjoyment  was  of  right;  and  if  the  defend- 
ants .-cured  that  it  might  mislead  the  jury,  they  should 
have  asked  an  explanatory  charge. — Ewing  v.  Sanford, 
19  Ala.  605;  28  Ala.  200. 

4.  The  first  charge  asked,  it  given,  would  have  author- 
ized a  verdict  for  the  defendants,  although  the  jury  might 
have  believed  from  the  evidence  that  Bethea  always  ad- 
mitted the  wrong,  and  promised  every  year  to  remove  it. 

5.  The  second  charge  asked  confounds  the  injury  with 
the  damages.  The  injury  of  which  the  plaintiff  com- 
plained  was  the  diversion  of  the  water,  while  she  claimed 
the  a  resulting  from  that  injury.  The  fact  that 
tbe  Injury — i.  c,  the  tort,  or  wrongful  act,  by  which  the 
damage  was  subsequently  caused — occurred  more  than  a 
year  before  the  suit  was  brought,  would  not,  as  the  charge 
asserts,  bar  a  recovery  for  (he  damages  which  accrued 
from  that  tort  within  the  twelve  months.  But,  if  injury 
and  damages  are  to  be  considered  as  synonymous  terms, 
then  the  refusal  of  the  charge  amounts  only  to  error 
without  injury ;  since  the  court  expressly  instructed  the 
jury,  that  the  plaintiff's  recovery  must  be  limited  to  the 
damages  which  accrued  within  twelve  months  before  the 
commencement  of  the  action. 


OF  ALABAMA.  255 


Polly  v.  McCall. 


STONE,  J.— [June  22,  I860.]— The  circuit  court  did 
not  err,  in  admitting  evidence  of  the  admissions  of  the 
defendant  Polly.  The  facts  which  the  admissions  tended 
.to  prove  were  material,  and,  as  against  the  defendant 
Polly,  we  can  perceive  no  reason  for  excluding  them  from 
the  jury. — Palmer  v.  Severance,  9  Ala,  751;  Falkner  v. 
Leit'h,  15  Aia.  9;  Goodman  v.  Walker,  30  Ala.  500. 

[2.]  Neither  did  the  court  err,  in  admitting  oral  testi- 
mony of  the  written  notice  served  in  this  case.  This  fact 
was  collateral  to  the  issue — was  not  necessary  to  the 
plaintiff's  success  in  the  suit,  either  in  consequence  of 
any  requirement  of  the  law,  or  of  the  pleadings  in  the 
cause.  This  case,  then,  is  within  the  exception  to  the 
general  rule  in  regard  to  the  proof  of  writit  gs. — J3umas 
v.  Hunter,  30  Ala,  75;  1  Greenl.  Ev.  §  5G1;  2  Phil.  Ev. 
(ed.  1849,)  225;  4/6.  43:5. 

[3.]  In  cases  where  there  is  no  secrecy  in  the  transac- 
tion, holding  adversely,  independently,  and  as  of  right,  are 
not  very  distinguishable  from  each  other.  The  real  point 
of  distinction  is  between  a  tolerated,  or  permissive  usar, 
and  one  which  is  adverse,  or  as  of  right.  The  former 
does  not  mature  into  a  title  by  prescription ;  while  the 
latter,  if  continued  by  actual  adverse  enjoyment  for  a 
period  corresponding  with  that  which  is  prescribed  in  the 
statute  of  limitations  in  reference  to  the  right  of  entry 
upon  land,  will  confer  an  absolute  right. 

There  is  another  point  presented  by  the  evidence  in 
this  record,  which  we  feel  it  our  duty  to  notice.  The 
record  informs  us  that,  although  theditch  and  levee,from 
the  time  they  were  placed  there,  diverted  the  water  from 
|ts  accustomed  channel;  and  although  some  portions  of 
water,  in  times  of  great  floods,  flowed  on  the  lands  of 
Mrs.  McCall,  yet  no  damage  was  actually  done  1<>  the 
|ands  in  controversy,  until  the  year  1857.  There  is  a 
wide  dif  between   the  act  of  sinking  the  ditch, 

and  the  ultimate  result^  viz.,  the  flooding  of  Mis.  McCaH'i 
land.  The  one  was,  in  itself,  rightful,  because  it  was  on 
tin'  lauds  of  him  under  whom  defendants  derive  their 
title.     The  use  of  the  ditch  and  levee,  per  se}  needed  no 


256 SUPREME  COURT 

Polly  v.  McCall. 

prescriptive  right  to  uphold  it.  The  consequential  re- 
sult—the injurious  Hooding  of  the  lands  of  plaintiff— did 
not  confer  a  right  of  action,  until  the  injury  actually 
occurred.  Till  then,  the  user  -in  its  injurious  sense  did 
not  begin.  A  partial,  harmless  flooding,  although  exer- 
cised of  right,  could  not,  by  prescription,  ripen  into  a 
right  to  flood  Mrs.  McCall's  lands  more  extensively  and 
injuriously.  The  wrong,  for  which  damages  are  recover- 
able, is  the  actual  injury  to  plaintiff's  land,  not  the  remote 
cause  from  which  that  injury  resulted  many  years  after- 
wards. 

[4.]  In  the  case  of  Roundtree  v.  Brantley,  (34  Ala.  544,) 
most  of  these  questions  are  considered  and  settled.  It 
is  also  there  ruled,  that  the  statute  of  limitations  in  this 
action  is  one  year. — See,  also,  Aug.  on  '  Water-Courses, 
§§  216  to  221,  inclusive;  Ang.  on  Lim.  §  390;  Mebanev. 
Patrick,  1  Jones's  Law,  23;  Ingraham  v.  Hough,  ib.  39; 
Esling  v.  Williams,  10  Barr,  126;  Brown  v.  Cockrell, 
33  Ala.  38;  Felton  v.  Simpson,  Hired.  Law,  84;  Campbell 
v.  Smith,  3  Ilalst.  140;  Sargent  v.  Bullard,  9  Pick.  251; 
Brown  v.  Xing  5  Mctcalf,  173;  Tyler  v.  Wilkinson, 
4  Mason,  397;  Bullen  v.  Runnels,  2  N.  II.  255;  Middle- 
ton  v.  Gregorie,  2  Rich.  Law,  631;  Trask  v.  Ford,  39  Me. 
437;  Campbell  v.  WHsofe,  3  East,  294. 

[5.]  The  circuit  court  was  right,  in  tellingthe  jury  that 
they  could  not  allow  damages  for  injuries  which  accrued 
after  the  commencement  of  the  suit. — See  Shaw  v.  Eth- 
erfdge,  8  Jones,  300;  Harp.  276;  Langford v.  Owsley,  2Bibb, 
21(5.  But  the  court  did  not  err,  in  admitting  evidence  of 
injury  alter  the  commencement  of  the  suit,  with  the  view 
of  affording  information  to  the  jury  of  the  consequences 
of  the  diversion  under  similar  circumstances  before  the 
suli.— Stein  v.  Burden,  24  Ala.  147. 

[7.]  One  portion  of  the  affirmative  charge  given  and 
excepted  to,  was,  at  least,  calculated  to  mislead,  if  given 
without  explanation.  We  allude  to  that  part  which  asserts 
that,  to  establish  a  right  by  prescription,  the  burden  was 
on  the  defendant  of  showing  affirmatively  that  the  act  of 
flooding  the  plaintiff's  laud  was  done  as  of  right.     There 


OF  ALABAMA.  257 


Polly  v.  McCall. 


was,  it  is  true,  evidence  which  tended, to  repel  the  idea 
that  the  flooding  of  plaintiff's  land  was  done  as  of  right. 
But  it  was  for  the  jury  to  determine  what  facta  were 
proved.  We  hold,  that  where  one  land-holder,  by  a  ditch 
and  icvee  on  his  own  lands,  diverts  water,  and  throws  it 
on  the  lands  of  another  to  his  injury;  and  this  injury 
continues,  without  increase,  for  ten  years;  and  there  is 
no  evidence  on  the  question  whether  such  user  is  per- 
missive or  otherwise, — the  jury  may,  without  further 
proof,  infer  that  the  use  was  adverse  and  as  of  right.  This 
question,  however,  must  depend  much  on  the  nature  of 
the  use,  whether  exclusive,  &c.  Many  cases  may  he  sup- 
posed— such  as  the  use,  with  others,  of  a  private  way,  or 
of  a  fishery — in  which,  doubtless,  some  proof  would  be 
required  that  the  use  was  adverse,  or  as  of  right. — See 
"Brown  v.  Cockrell,  supra.  Subject  to  this  criticism,  the 
affirmative  charge  was  free  from  error. 

The  first  charge  asked  was  rightly  refused.  If  given, 
the  defendants  would  have  been  entitled  to  a  verdict, 
notwithstanding  the  jury  may  have  been  convinced  by 
the  evidence  that  the  author  of  the  nuisance  had  given 
repeated  and  continuous  assurances  that  the  nuisance 
should  be  abated;  and  notwithstanding  the  injury  may 
have  been,  for  several  years,  slight  and  inconsiderable, 
'and  then  have  become  grievous  aud  oppressive. 

The  second  charge  asked  should  have  been  given.  The 
injury  complained  was  the  damage  to  plaintiff's  land,  not 
the  cause  which  produced  that  injury.  Injury,  in  legal 
contemplation,  is  an  effect — not  a  cause. 

[7.]  It  is  contended  for  appellee,  that  if  in  refusing 
this  charge  the  circuit  court  erred,  it  was  error  without 
injury;  tor  the  same  legal  principle  which  this  charge 
asserts,  was  expressly  affirmed  by  the  court  in  another 
part  of  the  charge  to  the  jury.  This  seems  to  have  been 
the  case;  and  we  regret,  under  the  circumstances,  that 
we  feel  it  our  duty  to  send  this  case  back  for  another 
trial.  The  Btatute,  however,  is  positive.  Its  language 
is— "§  2355.  Charges  moved  for  by  either  party,  must 
be  in  writing,  and  must  be  given  or  refused,  in  the  terms 


258 SUPREME  COURT 

Connor  v.  Trawick's  Adm'r. 

in  which  they  jfre  written ;  and  it  is  the  duty  of  the 
judge  to  write  'given'  or  'refused,' as  the  case  may  be, 
on  the  document,  and  sign  his  name  thereto;  which  there- 
by becomes  a  part  of  the  record,  and  may  be  taken  by 
the  jury  with  them  ou  their  retirement."  This  section 
secures  to  parties  certain  rights,  and  also  operates  a  pro- 
tection to  the  court  and  the  parties  against  errors  of 
memory.  Among  the  rights  secured  to  the  party  who 
requests  the  charge,  are — 1st,  that  he  can  have  the  charge 
given  in  his  own  language,  if  the  charge  express  a  cor- 
rect legal  principle,  and  be  not  abstract;  2d,  that  he  cau 
claim  that  charges  thus  moved  for,  shall  be  carried  by 
the  jurors  with  them  in  their  retirement.  We  should 
deprive  parties  of  these  rights,  if  we  held  the  doctrine  of 
error  without  injury  applicable  to  such  a  case  as  this. 
We  have  no  authority  to  sanction  a  practice,  which  would,' 
in  effect,  abrogate  the  statute  in  many  cases. 
Reversed  and  remanded. 


CONKOR  vs.  TRAWICK'S  ADM'R. 

[detinue  for  slave.] 

1.  Delivery,  or  writing  under  sea!,  necessary  to  constitute  gift. — At  com- 
mon law,  in  the  absence  of  an  actual  delivei'y  of  the  property 
itself,  a  gift  could  only  be  consummated  by  deed,  or  other  instru- 
ment under  seal ;  not  because  the  delivery  of  the  deed  was  held  a 
symbolical  delivery  of  the  property,  but  on  the  principle  of 
estoppel. 

2.  Presumed  existence  of  common  law  in  other  States.- — In  the  absence  of 
evidence  to  the  contrary,  the  courts  of  this  State  will  presume 
that  the  common  law  prevails  in  other  States. 

Appeal  from  the  Circuit  Court  of  Marengo. 
Tried  before  the  Hon.  C.  W.  Rapier. 

This  action  was  brought  by  Burwell  T.  Connor,  an 


OF  ALABAMA.  259 


Connor  v,  Trawick's  Adm'r. 


infant,  suing  by  his  next  friend,  against  the  administrator 
of  Ignatius  A.  Trawick,  deceased,  to  recover  a  slave 
named  Toby,  which  the  plaintiff  claimed  under  an  alleged 
gift  from  his  grandfather,  Burwell  Trawick,  deceased,  as- 
evidenced  by  an  instrument  of  writing  in  the  following 
words : 

"Know  till  men,  by  these  presents,  that  I,  Burwell 
Trawick,  of  the  county  of  Attala,  State  of  Mississippi, 
for  divers  good  causes  and  considerations  me  thereunto 
moving,  have  this  day  given  and  conveyed  unlo  my  grand- 
daughter, Isabella  Porter,  my  boy  ]STed,  also  one  feather- 
bed, and  all  the  furniture  thereto  belonging;  and  I  also- 
give  and  convey  to  my  grand-daughter,  Susannah  Porter,. 
my  bo}r  Martin,  and  one  feather-bed  and  furniture;  and 
third,  I  give  and  convey  to  my  grandson,  Burwell  T.  Con- 
nor, my  boy  Toby,  and  watch;  saving  to  myself,  however, 
the  use  and  benefit  arising  from  all  of  my  said  property 
during  my  natural  life;  and  I  hereby  appoint  E.  M. 
Wells,  esquire,  my  trustee  and  guardian,  to  manage  and 
control  the  above-mentioned  property,  until  said  children 
become  of  age  or  marry;  giving  uuto  each  negro,  at  the 
end  of  the  year,  the  sum  of  five  dollars,  for  the  proceeds- 
of  their  labor.     April  25,  1851. 

UB.  Teawick." 

"  We  have  this  day  witnessed  the  delivery  of  the  negroes, 
mentioned  above,  April  25,  1861."  (Signed  by  William 
Holland  aud  Jno.  T. -Holland.) 

This. instrument  was  executed  in  the  State  of  Missis- 
sippi, on  the  day  of  its  date,  and  was  delivered  by  said 
B.  Trawick  to  E.  M.  Wells,  in. the  presence  of  William 
Holland  and  Jno.  T.  Holland.  William  Holland  testitied, 
that,  at  the  time  of  its  delivery,  "B.  Trawick  called  up 
the  negroes,  and  told  them  what  he  had  done,  and  that 
Judge  Wells  was  the  trustee,  and  would  take  charge  of 
them  after  his  death."  Jno.  T.  Holland  testified,  "B. 
Trawick  then  called  up  the  negroes,  and  explained  to 
them  what  he  had  done — that  he  had  given  Ned  to 
bella  Porter,   Martin  to  Susannah  Porter,  and  Toby  to 


260 SUPREME  COURT  

DOT  v.  Trawiek's  Adm'r. 

Burwell  T.  Connor;  und  told  them  that  'Judge  Wells 
would  see  to  them,'  or  words  to  that  effect."  E  M. 
Wells  testified,  "B.  Trawick  then  called  up  the  negroes, 
and  told  them,  that  he  had  given  Xed  to  Isabella  Porter, 
Martin  to  Susannah  Porter,  aud  Toby  to  B.  T.  Connor, 
and  had  appointed  me  his  trustee  and  guardian  to  see  to 
them;  and  I  then  told  them  to  go  and  attend  to  their  old 
master's  business."  The  slave  Toby  continued  in  the 
possession  of  said  Burwell  Trawick  up  to  the  time  of  his 
death,  which  occurred  in  March,  L853;  aud,  on  the  final 
distribution  of  his  estate,  was  allotted  to  Ignatius  A. 
Trawick,  the  defendant's  intestate,  who  was  his  son. 

"On  this  evidence,  the  court  charged  the  jury,  '1st, 
that  the  instrument  under  which  the  plaintiff  claims  the 
slave,  is  not  a  deed,  and  has  not  the  effect  and  operation 
of  a  deed  in  this  case;'  2d,  'that  if  said  instrument  was 
executed  by  B.  Trawick,  and  b}7  him  delivered  to  Wells, 
such  delivery  would  not  be  sufficient,  of  itself,  to  pass 
title  from  Trawick  by  way  of  gift,  unless  the  slave  was 
also  delivered  ;'  and,  3d,  'that  to  constitute  a  valid  gift, 
there  must  have  been  some  ostensible  act  done  to  signify 
a  transfer  ot  the  possession  of  the  slave,  aud,  connected 
therewith,  a  present  intention,  on  the  part  of  the  donor, 
to  pass  the  dominion  over  the  property  from  himself  to 
the  donee,  or  to  some  one  else  for  him.'  The  plaintiff' 
excepted  to  each  of  these  charges,  and  then  requested  the 
court  to  instruct  the  jury,  'that  if  they  believed,  from  the 
evidence,  that  B.  Trawick  intended  to  give  the  boy  Toby 
to  the  plaintiff,  and,  in  order  to  carry  out  this  intention, 
wrote  the  instrument  read  in  evidence,  and  cailed  on  per- 
sons present  to  witness  its  execution,  and  signed  it  in 
their  presence,  and  delivered  it  to  E.  M.  Wells,  thereby 
intending  at  the  time  to  convey  said  boy  to  the  plaintiff; 
and  that  the  boy  Toby  was  then  present, — then  the  jury 
must  find  for  the  plaintiff.'  This  charge  the  court  refused 
to  give,  without  qualification  ;  and  the  plaintiff  excepted 
to  its  refusal." 

The  charges  given  by  the  court,  and  the  refusal  of  the 
charge  asked,  are  now  assigned  as  error. 


OF  ALABAMA.  261 


Connor  v.  Trawick's  Adm'r. 


Brooks  &  Gaurott,  for  appellant. — A  gift  of  personal 
chattels  is  the  act  of  transferring  the  right  and  possession 
of  them,  whereby  0116  man  renounces,  and  another  ac- 
quires, title  and  interest  therein.  Delivery  is  essential  to 
the  validity  of  a  gift;  but  it  needs  not  to  be  actual — it 
may  be  constructive,  or  symbolical.  The  delivery  of  a 
deed  is  a  constructive  delivery  of  the  property,  and  passes 
the  title  and  dominion  to  the  donee. — McCutchen  v. 
McCutchen,  9  Porter,  650;  Adams  v.  Broughton, 
13  Ala.  731;  Newman  v.  James  &  Newman,  12  Ala.  29. 
But  it  is  not  necessary  that  the  instrument  of  writing 
should  be  under  seal,  though  it  usually  has  that  form.; 
and  the  courts,  in  speaking  of  such  constructive  delivery, 
generally  use  the  term  deed,  because  it  is  the  appropriate 
description  of  the  particular  instrument  before  them.  At 
one  time,  a  deed  was  regarded  as  au  instrument  of  unusual 
sanctity  and  solemnity;  it  was  presumed  to  be  founded 
upon  a  valid  consideration,  and  its  consideration  could 
rtot  be  impeached  at  law.  But  the  old  doctrine  has  been 
greatly  modified  in  modern  times.  In  reference  to  per- 
sonal property,  a  deed  has  no  more  potency  to  pass  title 
than  an  unsealed  writing.  Blaekstone  says,  that  a  gift 
may  be  made,  "either  in  writing,  or  by  word  of  mouth," 
(2  Bla.  Com.  356;)  and  it  is  not  intimated  that  the  writing 
must  be  under  seal.  A  gift  of  a  chattel,  "by  deed  or 
writing,"  is  good,  without  an  actual  delivery  of  the  pro- 
perty.— Flowers'  case,  Noye's  R.  67;  Irons  v.  Smallpiece, 
2  Barn.  &  Aid.  551;  Carradine  v.  Collins,  7  Sm.  & 
Mar.  428. 

S.  F.  IIalb,  contra. — All  the  authorities  lay  down  the 
rule,  that  a  gift  ia  ool  effectual  to  pass  property,  unless  it 
is  accompanied  by  actual  delivery,  or  consummated  by 
deed.  Here,  the  writing  was  not  under  seal;  and  there 
could  be  no  actual  delivery  of  the  slave,  because,  by  the 
terms  of  the  instrument,  the  donee  was  not  to  have  pos- 
<u  until  after  the  death  of  the  donor. 

a  W.  WALKER,  J.— [Jan.  30,  1861.]— It  has  long 


262  SUPREME  COURT 


Connor  v.  Trawick's  Adm'r. 


been  understood  to  be  the  law,  that,  in  the  absence  of  an 
actual  delivery  of  the  property,  a  gift  can  only  be  made 
by  deed,  or  other  instrument  under  seal.  In  the  present 
.  there  could  be  no  actual  delivery  of  the  property, 
because,  by  the  terms  of  the  alleged  gift,"the  donee  was 
not  to  have  possession  until  after  the  death  of  the  donor; 
and  as  the  writing  relied  on  is  not  under  seal,  we  must 
decide  that  there  was  not  a  valid  gift,  unless  we  arc  pre- 
pared to  repudiate  the  rule  above  stated,  and  to  hold  that 
a  gift  may  be  consummated,  as  well  by  the  delivery  of  an 
unsealed  writing  declaring  its  terms,  as  by  the  delivery  of 
the  property  itself,  or  of  a  deed  or  other  instrument  under 
■seal. 

It  is  argued,  that  a  deed  effectuates  the  gift,  because 
the  delivery  of  the  deed  is  but  a  symbolical  delivery  of 
the  property ;  that,  as  the  title  to  personalty  passes  by 
unsealed  writing,  as  well  as  by  deed,  there  is  no  good 
raason  why  the  former,  as  well  as  the  latter,  should  not 
operate  a  constructive  delivery  of  the  property ;  and  that, 
if  there  ever  was  any  substantial  ground  for  a  distinction 
between  the  two  classes  of  writings,  as  the  means  of  con- 
summating gifts,  it  no  longer  exists,  and  the  distinction 
'bus  become  obsolete.  It  is  a  mistake,  however,  to 
suppose,  that  the  reason!  why  the  delivery  of  a  deed,  de- 
claring the  gift,  has  the  same  effect,  as  between  the  parties, 
as  the  actual  delivery  of  the  property,  is  because  the  de- 
livery of  the  deed  is  but  a  symbolical  delivery  of  the 
thing.  That  would  not  have  been  bo  in  the  present  case, 
if  the  donor  had  delivered  a  drvA,  instead  of  an  unsealed 
writing:  for,  by  the  terms  of  the  gift,  no  immediate  de- 
livery of  the  property  was  intended,  but  the  donor  was 
to  retain  the  possession  and  control  of  it  so  long  as  he 
lived. 

It  is  rather  upon  the  principle  of  estoppel,  that,  for  the 
purpose  of  consummating  a  gift,  the  delivery  of  a  deed  is 
as  effectual  as  the  delivery  of  the  property.  According 
to  the  ancient  common  law,  the  seal  was  invested  with 
great  solemnity  and  lone.  "Words  pass  from  man  to 
man,  lightly  and  inconsiderately;  but,  where  the  agree- 


OF  ALABAMA.  263 


Connor  v.  Trawick's  Adm'r. 


ttient  is  by  deed,  there  is  more  time  for  deliberation.  For, 
when  a  man  passes  a  thing  by  deed,  first  there  is  the  de- 
termination of  the  mind  to  do  it,  and  upon  that  lie  causes 
it  to  be  written,  which  is  one  part  of  the  deliberation; 
and  afterwards  he  puts  his  seal  to  it,  which  is  another 
part  of  deliberation  ;  and  lastly,  he  delivers  the  writing 
as  his  deed,  which  is  the  consummation  of  his  resolution. 
So  that  there  is  great  deliberation  used  in  the  making  of 
deeds;  for  which  reason,  they  are  received  as  a  lien  final 
to  the  party,  and  are  adjudged  to  bind  the  party,  without 
examining  upon  what  cause  or  consideration  they  were 
made.  As  if  I  by  deed  promise  to  give  you  £20,  here 
you  shall  have  an  action  of  debt  upon  this  deed,  and  the 
consideration  for  my  promise  is  not  examinable;  it  is  suf- 
ficient to  say  it  was  the  will  of  the  party  who  made  the 
deed." — Flowden,  arguendo,  in  Sharington  v.  Stratton, 
Plowd.  308. 

Although  it  is  true  that,  in  modern  times,  the  seal  has 
been  stripped  of  much  of  its  ancient  force,  the  doctrine 
of  estoppel  by  deed  is  still  maintained.  Hence,  where  a 
gift  of  personal  property  is  made  by  deed,  the  delivery  of 
the  deed  transfers  the  right  to  the  property;  for  the  rea- 
son, that  the  form  of  the  instrument  imports  a  considera- 
tion for  the  transfer,  and  the  maker  of  the  deed  is  estopped 
thereby  from  asserting  'that  he  has  not  granted  to  the 
donee  a  power  of  control  and  dominion  over  the  property 
•conveyed  by  the  deed  ;  and  this  irrevocable  transfer  of  do- 
minion isthe  "one  thing  needful"  to.perfectagift.  "The 
deed  does  not  operate  on  tin1  property,  in  virtue  of  its  being 
a  symbol  of  it,  but  because  it  carries  on  its  face  an  acknow- 
■d  right  in  the  grantee  to  Roptrol  it.  A  symbolical  de- 
livery of  one  tiling,  in  the  name  of  another,  is  no  delivery  of 
the  latter.  The  argument  of  Lord  Chancellor  Hardwicke, 
in  Ward  v.  Turner,  (2  Vesey,  Sr.  431 ,)  is  conclusive  upon 
this  point.  But,  it  the  key  be  delivered  ni'  a  desk,  in 
which  a  paper  or  a  jewel  i-  contained,  the  paper  orj 
is  thereby  delivered  ;  because  he  who  has  the  key,  has  the 
dominion  of  it.  ipon  aim  inds, 

tod  whenever  the  deed  is  cu ted  and  delta- 


SUPREME  COURT 


Connor  v.  Trawick's  Adm'r. 


ered   it  draws  to  the  grantee  the  thing  according  to  its 
terms," — Jaggers  v.  Estes,  3  St  rob.  Eq.  380. 

But,  unless  the  donor  has  executed  a  deed,  whereby  he 
is  estopped  from  saying  that  the  property  has  not  pas 
to  the  donee,  no  mere  verbal  or  written  declaration  will 
consummate  the  gift;  the  doctrine  of  estoppel  does  not 
applv  to  such  a  case;  and  unless  there  be  a  deed,  or  a 
contract  supported  by  a  valuable  consideration,  the  pro- 
prietary light  of  control  cannot  pass  without  a  delivery 
of  the  property.  Hence,  a  parol  declaration  of  gift 
(whether  verbal,  or  by  unsealed  writing)  stands  upon  the 
footing  of  a  mere  promise  to  give,  and  is  void  in  law. 
See  Addison  Contr.  12,  27;  1  Parsons  Contr.  201;  Wil- 
liams on  1'ers.  Prop.  marg.  pp.  33-5;  McCutchen  v. 
McCutchen,  9  Porter,  650,  656-7;  Irons  v.  Small  piece, 
2  B.  &  Aid.  551;  Miller  v.  Anderson,  4  Rich.  Eq.  1; 
Busby  v.  Byifd,  ib.  9;  Jaggers  v.  Estes,  3  Strob.  Eq.  379; 
Morrow  v.  Williams,  3  ])ev.  263;  Thompson  v.  Thomp- 
son, 2d  How.  Miss.  737;  Barker  v.  Darker,  2  Gratt.  344; 
11  L  -h,  439;  15  Ala.  406;  18  Ala.  822';  17  Ala.  772; 
1  Bun  ill's  Law  Diet.  (2d  ed.)  p.  686. 

What  we  have  said  may  serve  to  indicate  the  origin  of 
the  distinction  between  deeds,  on  the  one  hand,  and  ver- 
bal declarations,  or  unsealed  writings,  on  the  other,  as  the 
means  of  consummating  gilts.  Whatever  the  original 
reasons  for  the  distinction,  it  is  well  established  in  the 
common  law  ;  and  forming,  as  it  does,  a  rule  of  property, 
we  are  not  disposed  to  disturb  it.  If  asked  why  we  would 
decide,  in  the  absence  of  a  statute,  that  land  could  not 
be  conveyed  by  an  unsealed  instrument,  as  well  as  by 
deed:  or  why  will  not  a  verbal  declaration  of  gift,  with- 
out delivery,  be  effectual  to  pass  the  title  to  personalty ; 
we  might  find  it  difficult,  at  the  present  day,  to  give  any. 
better  answer  than  this — The  law  is  so  settled,  and  it  is 
only  "with  trembling  hands"  (according  to  the  maxim 
of  Montesquieu)  that  courts  should  venture  to  change 
settled  laws. 

[2.]  The  writing  relied  on  in  this  case  was  executed  in 
Mississippi ;  and  there  being  no  evidence  to  the  contrary 


Off  ALABAMA. 265 

Bean  v.  Bean's  Adm'r. 


before  us,  we  must  presume  that  the  rule  of  the  common 
law  prevails  in  that  State. 

Whether  our  legislation  has  wrought  such  changes  in 
the  principles  of  the  common  law,  as  would  enable  us  to 
hold  that  a  gift  of  personal  property  may  be  made,  in  this 
State,  by  an  unsealed  writing,  without  delivery  of  the 
property,  we  need  not  inquire,  and  do  not  decide. 

Judgment  affirmed. 


BEAN  vs.  BEAN'S  ADM'R. 

"JniLI.  IX  EQUITY  TOR  ACCOUNT,  PARTITION,  AND  DISTRIBUTION  OF  DECED'Eld's 

ESTATE.  1 

1.  ^fn/tifarionsness. — A  bill,  filed  by  a  widow,  jointly  with  her  only 
child  by  her  first  husband,  against  the  administrator  and  heirs-at. 
law  of  her  second  husband,  asking  an  acou-nt  of  the  hire  of  cer- 
tain slaves,  in  which  the  widow  had  a  life-estate  at  the  time  of  her 
first  marriage,  during  the  period  of  her  second  husband's  posses- 
sion of  them,  a  partition  of  the  slaves  between  her  and  her  child, 
and  the  recovery  of  her  distributive  share  of  her  second  husband's 
estate. — is  multifarious,  since  it  asserts  separate  and  distinct  rights, 
in  which  the  complainants  have  no  community  of  interest. 

2.  Dismissal  for  multifariousness. — Although  the  chancellor  seldom 
should,  he  nevertheless  may,  sua  sfKmtc,  dismiss  a  bill  for  multifa- 
riousness; and  if  the  objection  really  exists,  the  appellate  court 
will  not  reverse  his  dec . 

Appeal  from  the  Chancery  Court  of  Pike. 
Heard  before  the  Hon.  Wade  Keyes. 

The  facts  of  this  case,  as  disclosed  by  the  averments  of 
the  bill,  arc  these:  Alley  Riley  died,  iu  1829,  in  Autauga 
county.  Alabama;  and  by  his  last  will  and  testament, 
which  was  duly  admitted  to  probate  after  his  death,  de- 
vised and  bequeathed  to  his  widow,  Mrs.  Dorcas  Riley, 
a  life-estate  iu  all  of  his  property,  consisting  of  lands  and 
18 


SUPREME  COURT 

Bean  v.  Bean's  Adm'r. 

slave-.  The  estate  was  duly  administered,  and  the  prop- 
erty passed  into  the  possession  of  the  widow,  who,  in 
1840,  married  one  Jackson  Mallet.  Mallet  died  in  1845, 
intestate,  "  leaving  no  property  of  much  value,  except  the 
life-estate  of  said  Dorcas  in  said  slaves,  and  another  slave 
purchased  by  her,  prior  to  her  marriage  with  him,  with 
the  proceeds  of  her  said  life-estate;"  his  widow  and  an 
only  child  by  her,  Charles  Mallet,  being  the  distributees 
of  his  estate.  In  1846  the  widow  married  one  Alexander 
Bean,  having  in  her  possession  all  the  slaves  which  sho 
had  received  under  the  will  of  her  first,  husband,  together 
with  some  other  property,  which  had  been  purchased 
with  the  proceeds  of  their  labor;  all  of  which  went  into 
the  possession  of  said  Bean  on  his  marriage,  and  were 
used  and  enjoyed  by  him  up  to  the  time  of  his  death, 
which  occurred  in  1855. 

In  March,  1857,  Mrs.  Boreas  Bean  and  Charles  Mallet 
filed  their  bill  against  the  personal  representatives  and 
heirs-at-lawof  said  Alexander  Bean;  alleging,  in  addition 
to  the  facts  above  stated,  that  the  marital  rights  of  Jack- 
son Mallet  attached  to  the  property  in  which  the  said 
Dorcas  had  a  life-estate  at  the  time  of  her  marriage  with 
him;  that  his  estate  had  nevsr  been  settled  and  distribu- 
ted, but  had  remained  together  undivided,  and  was  ready 
for  settlement;  that  the  respective  interests  of  the  com- 
plainants in  said  estate  had  never  been  ascertained  or  set 
apart  to  them,  but  the  entire  undivided  property  had 

1 n  used  and  enjoyed  by  said  Bean  during  his  marriage 

with  said  Dorcas;  and  that  said  Bean's  marrital  rights 
had  never  attached  to  said  property,  because  he  had  never 
reduced  to  possession  any  particular  ascertained  portion 
thereof.  The  prayer  of  the  bill  was,  that  the  personal 
representative  of  said  Bean  "be  required  to  account  for 
the  hire  of  said  life-estate  slaves  during  the  time  said 
Bean  had  them  in  his  possession,  receiving  and  appropria- 
ting their  hire;  also,  that  the  said  slaves,  with  the  other 
property  purchased  with  the  proceeds  thereof,  be  divided 
between  corrtplainants,  and  the  right  to  the  share  of  each, 
when  ascertained,  be  vested  in  them  respectively,  accord- 


OF  ALABAMA.  267 


Bean  v.  Bean's  Adin'r. 


ing  to  the  terms  of  said  Riley's  will,  and  the  law  govern- 
ing the  distribution  of  the  same,  as  part  of  the  estate  of 
said  Mallet;  also,  that  complainant  Dorcas  be  decreed  her 
portioji  of  the  estate  of  said  Beau,  and  for  such  other  and 
further  relief  as  the  nature  of  complainants'  case  may 
require." 

The  ehancclllor  dismissed  the  bill,  sua  sponte,  for  mul- 
tifariousness; and  his  decree  is  here  assigned  as  error. 


Pugii  &  Bullock,  for  appellants. 
H.  W.  Hilliard,  contra. 


■> 


A.  J.  WALKER,  C.  J.— [June  21,  18G0.]— One  of  the 
objects  of  this  bill  is  to  recover  the  interest  of  Dorcas 
Beau  in  the  estate  of  her  deceased  husband,  Alexander 
Beam  In  that  branch  of  the  case,  Charles  Mallet,  the 
co-complainant  of  Dorcas  Bean,  has  not  the  slightest  in- 
terest, and   he   lias  no  connection  with  it.     For  the  pur- 

s  of  this  opinion,  we  will  concedeto  the  complainants, 
without  deciding  the  question,  that  upon  the  facts  alleged 
the  two  complainants  were,  as  distributees  of  the  estate 
of  Mallet,  vested  with  a  joint  ownership  in  the  property, 
Which  was  originally  derived  from  the  estate  of  Riley, 
and  the  accessions  to  it.  This  being  conceded,  the  c 
plainant  Charles  Mallet  may  have  a  right  to  recover  from 

•laic  of  Bean  for  the  use  of  his  moiety  of  the  prop- 
erty. But  the  other  complainant,  Dorcas  Bean,  can  have 
no  such  right.;  for,  by  the  marriage  in  18-46  to  Alexai 
B<ian,  and  the  reduction  to  possession  by  the  husband, 
the  latter  became  entitled  to  his  wife's  personalty,  and 
to  the  usufrucl  of  her  real  estate  during  the  coverture. 
If  she  had  a  separate  estate  in  the  property,  ('which  the 
hill    doe9   not  show,)   it  is   not,  affected   by  our  married 

m's  laws,  and  the  husband's  representative  would 
not  lie  responsible  to  her  for  the  inconn  and  prof 

which  she  had  permitted  him  to  i  firing  theeo, 

tflre. — Roper  v.  Roper,  29  Aha.  i: IT.     There  is  uo  point 
of  view  in  which  Dorcas  Bean  is  interested  in  tie 
cry  for  the  irse  by  her  husband  of  the  property  which  she 


SUPREME  COURT 


Boiling  v.  Whittle. 


ami  her  co-complainant  had  at  the  time  of  her  marriage; 
the  same  thing  is  true  as  to  property  procured  with 
the  proceeds  or  income  during  the  marriage.  There  is, 
therefore,  not  the  slightest  interest  in  Dorcas  Bean,  so 
far  as  the  right  of  her  co-complainant  to  recover  for  the 
use  of  the  joint  property  is  concerned.  The  bill  seeks 
nothing  so  far  as  the  property  itself  is  concerned;  for  it 
is  in  the  possession  of  Dorcas  Bean,  and  does  not  seem  to 
be  even  claimed  by  the  heirs  or  representatives  of  Bean's 
estate. 

The  bill,  then,  does  not  make  out  a  case  of  any  commu- 
nity of  interest  in  the  two  complainants,  but  is  desigued 
to  enforce  rights  distinct,  unconnected,  and  having  no  re- 
lation to  each  other,  and  not  such  as  to  make  it  even  a. 
matter  of  convenience  to  consider  them  together.  Such 
a  bill  is  multifarious. 

[2.]  It  is  objected,  that  the  chancellor  dismissed  the 
bill  for  multifariousness  in  the  absence  of  a  demurrer.  It 
is  rarely  advisable  that  a  chancellor  should,  sua  sponte, 
dismiss  a  bill  for  such  a  cause;  still,  this  court  has  deci- 
ded, that  he  may  do  so,  and  that  the  decree  will  not  be 
reversed,  if  the  objection  really  exists. — Felder  v.  Davis, 
17  Ala.  418.  The  decision  referred  to  is  well  sustained 
by  the  authorities,  and  we  are  content  to  abide  by  it. — 
1  Dan.  Ch.  PI.  and  Pr.  397;  Story's  Eq.  PI.  §  284.  a; 
Greenwood  v.  Churchill,  1  M.  k  K.  546;  3  Howard,  411; 
10  Ohio,  456. 

Decree  affirmed. 


DOLLING  v*.  WHITTLE. 
[trespass  quasi  olausum  fregit.] 

1.    What  constitutes  trespass  to  realty. — Where  a  house  i&  erected  partly 
on  the  lands  of  the  plaintiff,  and  partly  on  the  adjoining  lands  of 


OF  ALABAMA.  269 


Boiling  v.  Whittle. 


the,' defendant;  but  is  not  shown  to  have  been  so  erected  by 
agreement  with  the  plaintiff,  under  circumstances  which  would 
justify  its  removal  as  a  mere  chattel — the  mere  fact  that  the  greater 
part  of  it  is  on  the  defendant's  lands,  gives  him  no  right  to  enter 
on  the  plaintiff's  lands,  or  to  remove  tin.'  house  therefrom. 

Appeal  from  the  Circuit  Court  of  Butler. 
Tried  before  the  Hon.  Robert  Dougherty. 

ThI3  action  was  brought  by  John  Billing,  against  A. 
F.  Whittle,  to  recover  damages  for  a  trespass  to  land. 
The  complaint  was  in  the  form  prescribed  by  the  Code, 
page  555.  The  evidence  adduced  on  the  trial,  and  the 
rulings  of  the  court,  are  thus  stated  in  the  bill  of  excep- 
tions: "The  plaintiff  proved  by  a  witness,  that  the  de- 
fendant removed  a  house,  worth  about  sixty-five  dollars, 
from  the  plaintiff's  land,  and  put  the  same  on  his  own 
land,  and  used  it;  and  it  was  proved  by- a  witness  who 
had  been  a  surveyor  for  many  years,  and  who  had  made 
a  survey  of  said  lands  at  the  instance  of  the  plaintiff,  that 
said  house  stood  about  thirty  feet  from  the  line  of  the 
defendant's  land.  The  defendant  then  introduced  a  wit- 
who  had  made  a  survey  for  him,  and  who  was  the 
county  surveyor  at  the  time  of  said  survey;  and  accord- 
ing to  the  testimony  of  this  witness,  the  line  betv. 
ffhe  defendant  and  the  plaintiff  ran  through  said  house, 
leaving  a  part  thereof  on  the  plaintiff's  land,  but  the 
larger  part  on  the  defendant's  land.  The  court  charged 
the  jury,  that  if  they  believed  from  the  evidence  that  the 
larger  part  of  the  house  was  on  the  defendant's  land, 
then  they  must  find  lor  the  defendant."  The  plaintiff 
excepted  to  this  charge,  and  he  here  assigns  it  as  error. 

Watt.-.  Judgh  &  Jackson,  for  appellant. 

STONE,  J.— [Juno  IS,  I860.]— We  think  the  eii 
court,  erred  in  the  charge  to  the  jury.  The  phase  of  the 
evidence  most  favorable  to  the  defendant,  (and  that  which 
1  by  the  charge.)  left  a  portion  of  the  house 
ou  the  land  of  the  plaintiff.  Thne  i-.  in  the  record,  no 
evidence  that  the  house  was  placed   there  by   agreement 


SUPREME  COURT 


nd  &  Howell  v   Wynn's  A>lm'r. 


■  plaintilf,  under  circumstances  which  would  jus- 
its  removal  as  a  mere  chattel. — See  Wells  v.  .Bannis- 
ter. 4  Mass.  514;  Ashman  v.  Williams,  8  Pick. '402;  Cur- 
tiss  v.    Hoyt,   19   Conn.   lo4.     This   being  the  ease,  the 
ndant  had  no  right  to  enter  on  the  land  of  plaintiff) 
nor  to  remove  a  fixture  from  it. — 1  Chit.  PI.  ITS;  1  Ilil- 
liard  on  Torts,  51G-7;  1  Milliard   on  Real  Property,  3; 
,,z  v.  Fincber,  12  [red.  297. 
Judgment  of  the   circuit  court  reversed,  and  cause  re- 
manded. 


K.V;LAXI)'&  HOWELL  vs.  WYNN'S  ADM'R. 

[ACTIOS  OS   COMMON   M"M.V   COUNTS.] 

1.  tSt      ■■''  of  frauds;  pr    ■<       '  ■  pi  . — A  decree  having 

ndered  against  a  sheriff  and   the  sureties  on   his  official 

I,  on  final  &ettlemen1  of  Ills  accounts  as  administrator  ■-' 

■'..  a  eerbal  promise   by    the  sureties,  made  to  the  plaintiff  in 

the  decree,  that  they  would  pay  an  item  of  costs  which,  by  mis- 

.  had  not    !-    M  taxed,  in   c  msideration  that  ho  would  allow  a 

lit  on  the  decree,  w  bioh  intended,  had  been  rendered 

for  more  than  was  justly  due,     isan  original  undertaking,  founded 

msideratipftj  and  is  not  within  the  statute  of  frauds. 

2.  Judicial  notice  <\f  therijf'' 8  term   of  ojh'ee.-* The  supreme   court  will 

j    dicinl   notice  ol  the  time   when   a  sheriff's  term  of  office 

Apieal  from  the  Circuil  Court  of  Talladega. 
Tried  before  the  Bo4i.  Robert  DouaHERir. 

Tins  action  was  brought  by  Elenry  McClellen,  as  ad- 
ministrator d(  b  of  the  estate  of  Mary  Wynn, 
»rge  li.  Ragland  and  Reese  •Howell, 
and  was  commenced  in  a  justice's  court.  In  the  circuit 
court,  on  appeal  from  the  justice's  judgment,  the  defend- 
ants ik  waived  a  Statement  in  writing  by  the  plaintiff,  and 


OF  ALABAMA.  271 


Ragland  &  Howell  v.  Wynn's  Adm'r. 


the  plaintiff  consented  that  the   defendants   might  prove 
everything  as  if  specially  pleaded."     The  plaintiff  him- 
self was  examined  as  a  witness  under  the  statute,  (Code, 
§  2313,)  and  testified  as  follows:     "Solomon  Spence  had 
been    sheriff  of  Talladega  county,  and,  by  virtue  of  his 
office  as  sheriff,   had   been   administrator  of  the  estate  of 
Mary    Wynn,   deceased;    and  the   defendants    were    the 
sureties  on  his  official  bond  as  sheriff.     The  plaintiff  was 
afterwards  appointed  administrator  de  bonis  non   of  said 
estate,  and  commenced  proceedings  against   said  Spence 
and  his  sureties,  in  the  probate  court  of  Talladega,  for  a 
settlement  of  said  estate;  and  obtained  a  decree  against 
said  Spence  and  the  defendants,  for  $155  85.     In  taxing 
the  costs  in  said  proceedings,    the  probate  court  omitted 
to  tax  the  printer's  fee,   amounting  to  about   §35;  and 
plaintiff  called  on  him  to  re-tax  the  costs,  so  as  to  include 
that  item:   but  the  judge  advised  him  to  see  the  defend- 
ant-,  as   he  thought   they   would   settle   without  a  rule. 
Plaintiff  then  called  on  defendants,  who  said  they  would 
not  settle  said  costs;  contending   that  the  decree  against 
them,  as  the  sureties  of  said    Spence,  had  been  rendered 
for  too  much  by  fifty  dollars,  and  that  Spence  was  entitled 
to  a  credit   lor  that  amount.      Plaintiff  then   proposed  to 
allow  them  a  credit  of  fifty  dollars  on  said  decree,  if  they 
would  pay  him  the  printer's  fee.     They  at   first    refused, 
but  afterwards  agreed  to  it,  and  told  plaintiff  to  instruct 
his  attorney  as  to  the  terms  on   which  they  had   settled. 
Plaintiff  accordingly  instructed  his  attorneys  to  enter  the 
credit  of  fifty  dollars  on  said   decree,  and  it  was  entered 
I  understanding;  but  the  defendants  had 
not    paid   said   printer's   fee."     The   plaintiff  then    intro- 
duced one  of  hi>  attorneys  as  a  witness,  who,  aft  er  stating 
'the;  ast  Spence  and  his  8Ui  .the 

court,  and  that  an  execution  on  the  d 
into  the   hands  of  Lawson,  the  sheriff;"  testified   a 
fend  ants,  with  the  sheriff,  came  to  my  < 
and  •  both,  tb"  other 

had  with   plaintiff,   if  he   would  allow   a 

credit  to  go  on  the  pro;  that  they  would  pay 


•_:•_<  SUPREME  COURT 


Ragland  Jb  ITowell  v.  Wynn's  Ad'm'r. 


up  the  remainder  and  settle  the  suit.  I  do  not  know 
that  the  subject  of  costs  was  mentioned  at  all;  but  rny 
understanding  at  the  time  was,  that  the  defendants  were 
to  pay  all  the  costs  of  the  proceedings.  With  this  un- 
derstanding, and  the  further  statement  by  the  defendants 
that,  if  there  was  anything  wrong  about  the  matter,  it 
would  be  corrected  when  the  plaintiff  came  to  town,  I 
signed  the  receipt  on  the  execution,  as  attorney  for  the 
plaintiff".  I  received  the  money,  and  afterwards  paid  it 
to  my  partner,  who  settled  with  the  plaintiff."  The  pro- 
bate judge,  by  whom  the  decree  was  rendered,  was  also 
examined  as  a  witness  on  the  part  of  the  plaintiff",  and 
testified,  '-that  tha  printer's  fee  in  the  case  was  $34,  and 
thaf  it  had  not  been  taxed  in  the  bill  of  costs." 

This  being  all  the  evidence  in  the  case,  the  court  re- 
fused to  charge  the  jury,  at  the  instance  of  the  defend- 
ants, that  if  the  defendants'  promise  was  not  iu  writing, 
they  could  not  find  for  the  plaintiff";  and  instructed  them 
that,  if  they  believed  the  evidence,  they  must  find  for 
the  plaintiff.  The  defendants  excepted  to  the  charge 
given,  and  to  the  refusal  of  the  charge  asked;  and  they 
here  assign  the  same  as  error. 

L.  E.  Parsons,  for  the  appellant. 
Jas.  B.  Martin,  contra. 

It.  W.  WALKER,  J.— [July  G,  I860.]— The  promise 
of  the  defendants,  being  founded  on  a  new  consideration 
beneficial  to  the  promisor,  was  an  original  undertaking, 
and  not  within  the  statute  ot  frauds. — Martin  v.  Black, 
21  Ala.  309;  Blount  v.  Hawkins,  19  Ala.  100. 

[2.]  The  bill  of  exceptions  does  not  expressly  state  that, 
the  agreement  between  the  parties  was  made,  and  the  de- 
cree credited  in  pursuance  of  it,  before  the  commence- 
ment of  this  suit.  But  it  is  shown  that  these  transactions 
occurred  while  Lawson  was  sheriff'  of  Talladega  county; 
and  we  judicially  know  that  he  ceased  to  be  such  sheriff 
in  1854,  nearly  two  years  before  this  suit  was  instituted. 

We  think  that  the  evidence  set  out  in  the  bill  of  ex- 


OF  ALABAMA.  273 


Wynne  and  Wife  v.  Walthall. 


ceptions  shows  a  valid  contract,  and  its  breach,  aud  that 
the  court  did  not  err  in  the  charge  givin. 
Judgment  aflirmed. 


WYJOE  and  WIFE  vs.  WALTHALL. 

[bill  in  equity  for  constuction  of  will.] 

1.  General  rules  of  construction. — In  the  construction  of  wills,  all  the 
parts  are  to  he  construed  in  relation  to  each  other,  so  as  to  form, 
if  possible,  one  consistent  whole  ;  and  though  the  former  of  two 
inconsistent  clauses  must  yield  to  the  latter,  yet  tins  rule  is  only 
applicable  after  the  failure  of  every  attempt  to  give  to  both  such  a 
construction  as  will  render  them  equally  effective. 

2.  Bequest  construed  to.vest  in  children  equal  interest  with  widow  in  an- 
nual iwrease  of  property. — Testator,  by  the  first  clause  Qf  his  will, 
directed  that  all  his  property,  both  real  and  personal,  should  be 
equally  divided  among  his  wife  and  three  children,  share  and  share 
alike:  and  that  his  entire  estate  should  be.  kept  together  and 
managed  by  his  executors,  (who  were  also  appointed  guardians  of 
his  children,)  until  his  eldest  child,  a  son,  should  attain  his  majority, 
when  his  sharo  was  to  be  set  apart  to  him  :  the  Bhare  of  each 
daughter  to  be  allotted  to  her  when  she  attained  the  age  of  twenty- 
one  years,  or  married  before  that  time  with  the  consent  of  her 
guardians.  The  second  clause  was  in  these  words:  "  It  is  my 
will  and  desire  that,  after  all  my  just  debts  and  liabilities  shall 
have  been  paid,  the  said  executors  and  guardians  of  my  children 
shall  paj  over  to  my  said  wife,  from  time  to  titaei  as  jhe  may  call 
for  the*  same,  such  portion  or  part  of  the  annual  increase  or  profits 
of  all  my  said  propi  rty  as  she  may  desire;  the  remainder  to  be  by 
them  invested  for  the  benefit  of  my  said  wife  and  children."  The 
fourth  clause  directed  his  executors  to  sell  a  certain  town  lot,  to 
purchase  another   luitaMt   lot  in    the    same   village,   and    to   have 

erected  thereon  a  dwelling-house,  "for  the  residence  and  benefit 

of  my  [hi>|  said  wife,  after  such  plan,  and  in  such  style  a-  she  may 

ire  and    d  The    third  clause  directed   the   Bale  o 

plantation  on  which  he  resided,  and  the  (il'tii  and  sixth  clau 
sale  of  certain  personal  property;  while  tl  i  clause  provi- 

ded, that  if  the   widow  or  any  0)  children  should  die  be- 

to  tho  latter  of  their  respective  shares,  the  sur- 


274         SUPREME  COURT , 

Wynne  and  Wife  v.  Walthall. 

vivors  should   take   the   interest  of  the  deceased  :  and  that  it'  all 

i]  ildren  Bhould  <lic  before  their  respective  shares  had  ' 
allotted  to  them,  then  the  widow  should  "  have  the  proceeds  ami 
'its  of  all  the  property  during  her  life."  Held,  that  while  the 
widow  was  entitled,  under  the  second  clause,  to  demand  and  re- 
ceive, from  the  executors  the  entire  annual  profits  of  the  property 
after  tlu'  payment  of  the  testator's  debts,  she  had  no  right  to  use 
them  for  the  purpose  of  investment,  or  for  her  own  exclu- 
sive benefit  in  any  other  manner :  that  the  children  took  an  equal 
interest  with  her  in  such  profits,  and  were  entitled  to  bo  main- 
tained and  educated  by  her  out  of  such  profits  ;  and  that,  while 
..she  had  a  right  to  use  and  enjoy,  in  common  with  the  children,  the 
house  and  lot  purchased  by  the  executors  under  the  fourth  clause, 
the  house  and  lot  were  the  property  of  the  estate,  and  subject  to 
distribution  under  the  first  clause. 

Appeal  from  the  Chancery  Court  of  Greene. 
Heard  before  the  Hon.  James  B.  Clark. 

Tiik  bill  in  this  case  was  filed  for  the  purpose  of  ob- 
taining a  judicial  construction  of  the  will  of  Robert  K. 
"Walthall,  deceased,  which  was  in  the  following  words: 

"It  is  my  will  and  desire,  that  all  my  property,  both 
real  and  personal,  shall  be  equally  divided  between  my 
beloved  wife,  Margaret,  and  my  three  children,  share  and 
share  alike;  that  is  to  say,  my  said  wife  shall  have  one 
share,  and  each  of  mj  children  one  share  of  said  property, 
to  be  kept  together,  managed  and  controlled  by  my  ex- 
ecutors and  the  guardians  of  ray  children,  hereinafter 
apj  ointed,  until  the  oldest  of  my  children  shall  arrive  at 
the  age  of  twenty-one  years;  at  which  time,  his  share 
shall  be  set  apart  in  a  manner  that  shall  be  just  and  equi- 
table, and  conveyed  to  him;  and  in  like  manner,  when 
the  next  oldest.  Bailie  Miranda,  shall  arrive  at  the  age 
of  twenty-' >ne  years,  or  if  she  should  marry  at  an  earlier 
age,  with  the  approval  and  consent  of  her  guardian,  then 
shall  her  share  be  Bet  apart  and  conveyed  to  her-;  and  in 
like  manner,  the  youngest,  when  she  shall  arrive  at  the 
age  of  twenty-one  years,  or  if  she  should  marry  at  an 
earlier  age,  with  the  like  approval  and  consent  of  her 
guardian,  then  shall  her  share  be  set  apart  and  conveyed 
to  her. 


OF  ALABAMA.  275 


Wynne  and  Wife  v.  Walthall. 


"Item,  it  my  will  and  desire  that,  after  all  my  just 
debts  and  liabilities  shall  have  been  paid,  the  said  execu- 
tors and  guardians  of  my  children  shall  pay  over  to  my 
Baid  wife,  from  time  to  time,  as  she  may  call  for  the  same, 
Such  portion  or  part  of  the  annual  increase  or  profits  of  all 
my  said  property  as  she  may  desire;  the  remainder  to  be  by 
them  invested  for  the  benefit  of  my  said  wife  and  children, 

"Item,  it  is  my  will  and  desire,  that  the  tract,  of  land 
on  which  I  reside,  called  the  'home  tract,'"  (particularly 
describing1  it,)  "  shall,  on  the  first  day  of  January,  1853,  be 
sold  to  L.  X.  Walthall,  and  a  fee-simple  conveyance  [be 
made]  to  him  and  his  heirs  forever,  free  from  any  incum- 
brance of- dower  or  otherwise,  (provided  the  said  L.  IS". 
"Walthall  desires  to  purchase  the  same,)  at  the  price  of 
twelve  dollars  and  a  half  per  acre;  and  in  the  event  the 
said  L.  X.  Walthall  shall  not  desire  to  purchase  the  said 
land  at  the  price  mentioned,  then  it  is  my  will,  that  the 
said  lands  shall  be  sold  at  public  outcry  to  the  highest 
bidder,  on  the  first  day  of  January,  1853. 

"Item,  it  is  my  will  and  desire,  that  my  said  executors 
shall  sell,  at  private  or  at  public  sale,  for  cash  or  on  time,- 
as  to  them  shall  seem  best,  the  lot  or  parcel  of  land  situa- 
ted in  the  village  of  Newborn,  in  Greene  county,  pur- 
chased by  me  from  Thomas  R.  Borden,  esq.,  and  shall 
purchase  in  said  village  another  suitable  lot,  and  shall, 
prior  to  the  first  day  of  January,  1853,  erect,  or  cause  to 
be  erected  thereon,  a  dwelling-house  forthe  residence  and 
benefit  of  my  said  wife,  after  such  plan,  and  in  such  style 
as  my  said  wife  shall  desire  and  direct. 

"Item,  it  is  my  will  and  desire,  that  ray  Baid  executors 
shall  sell,  at  an  early  convenienl  day,  my  riding-horse,  at 
private  or  public  sale,  for  cash  or  on  time,  as  to  them  may 
seem  b 

"i  ray  will  and  desire,  that  such  of  my  small 

mule-colts,  and  old  mules  unfit  for  use,  as  mv  said  i 

may  think  it  advisable  to  sell,  together  with  all  my 
and  ho  M  be  sold  at  public  outer 

the  highcsl    bidd    .  oc   the   first  day  of  Januar 

bay  mare,   called 
anil  the  colt  of  the  Irwin  DQfll 


276        SUPREME  COURT 

Wynne  and  Wife  v.  Walthall: 


"  //,  m,  it  is  my  will  ami  desire  that,  in  case  of  the  dentil 
of  my  wife,  or  of  either  of  my  children,  before  said  chil- 
dren shall  arrive  at  the  age  of  twenty-one  years,  or  the 
marriage  of  either  of  my  daughters,  then  the  survivors 
shall  have  the  share  that  would  have  been  allotted  to  the 
deceased;  and  in  the  event  of  the  death  of  all  my  chil- 
dren, before  they  shall  arrive  at  the  age  of  twenty-one 
years,  or  the  marriage  of  my  daughters,  ray  wife  survi- 
ving, then  my  said  wife  shall  have  the  proceeds  and  profits 
of  all  the  property  during  her  life;  and  at  her  death,  all 
my  said  property  shall  be  divided  equally  between  my 
brothers  and  sisters  as  may  be  living,  and  the  children  of 
those  that  may  be  dead,  except  such  property  as  I  have 
acquired,  or  may  acquire,  in  right  of  my  wife:  the  prop- 
erty thus  acquired,  in  right  of  my  wife,  in  the  event  last 
above  mentioned,  shall  descend  to  the  heirs  of  my  said 
wife,  in  the  same  manner  as  if  she  had  never  been  mar- 
ried. 

"Item,  it  is  my  will  ami  desire,  and  I  hereby  nominate 
and  appoint  ra}T  trusty  friends  and  beloved  brothers, 
John  M.  and  Thomas  M.  Walthall,  executors  to  execute, 
this  my  last  will  and  testament,  and  the  guardians  of  my 
children  during  their  minority." 

The  testator  died  in  Perry  county,  Alabama,  the  place 
of  his  residence,  in  September,  1851.  His  will  was  ad- 
mitted to  probate,  and  letters  testamentary  thereon 
granted  to  Thomas  M.  Walthall,  one  of  the  executors 
therein  named,  in  November,  1851.  The  personal  prop- 
erty of  the  estate  was  appraised  at  about  $50,000;  the 
value  of  the  lands  is  nowhere  stated  in  the  record.  In 
March,  1859,  the  executor  resigned;  and  the  widow 
having  in  the  meantime  married  P.  C.  Wynne,  letters  of 
administration  <ic  bonis  non,  with  the  will  annexed,  were 
then  granted  to  her  and  her  husband.  The  bill  was  tiled 
in  June,  1850,  by  Mr.  and  Mrs.  Wynne-,  against  the  two 
surviving  children,  (the  youngest  having  previously  died,) 
and  their  guardian.  The  children  were  described  in  the 
bill  as  infants  under  the  age  of  fourteen  years.     Answers 


OF  ALABAMA.  277 


"Wynne  and  Wife  v.  Walthall. 


were  filed  by  the  defendants,  submitting  to  the  jurisdic- 
tion of  the  court,  and  insisting  on  that  construction  of 
the  will  which  was  most  favorable  to  the  iuterests  of  the 
children. 

On  final  hearing,  on  bill,  answers  and  exhibits,  the 
chancellor  held,  that  Mrs.  Wynne  took  an  equal  interest 
with  her  children,  and  no  more,  both  in  the  annual  in- 
crease of  the  property  after  the  payment  of  debts,  and  in  the 
house  and  lot  purchased  by  the  executor  under  the  fourth 
clause;  and  that,  while  she  was  entitled  to  receive  and 
retain  the  entire  annual  profits,  she  could  not  invest  any 
portion  thereof  in  property,  or  otherwise  use  the  same- 
for  her  own  exclusive  benefit,  but  could  only  expend  it 
in  the  support  of  herself  and  the  maintenance  and  educa- 
tion of  the  children. 

From  this  decree  the  complainants  appeal,  and  here 
insist  that  thcchancellor  erred  in  restricting  Mrs.  Wynne's 
use  and  enjoyment  of  the  property  to  the  purposes  above 
specified,  and  in  holding  that  the  children  took  an  equal 
interest  with  her  under  the  second  and  fourth  clauses; 
while  the  defendants,  under  cross-assignments  of  error  by 
consent,  contend  that  he  should  have  restricted  her,  under 
the  second  clause,  to  such  portion  of  the  annual  profits 
as  might  be  reasonably  necessary  for  her  own  support, 
and  for  the  maintenance  and  education  of  the  children. 

Brooks  &  Garrott,  for  the  complainants. 

D.  W.  Baine,  and  W.  P.  Webb,  for  the  defendants. 

A.  J.  WALKKK,  C.  J.— [July  10,  I860.]— The  prime 
object  of  search,  in  the  construction  of  wills,  is  the  testa- 
tor's intention,  which,  if  legal,  is  the  law  of  the  instru- 
ment. To  assist  in  ascertaining  the  intention,  various 
rn  framed,  one  of  which,  being  a  suggestion 
of  the  plainest  common  sense,  is,  "that  all  the  parts  are 
to  bo  construed  in  relation  to  each  other,  and  so  as.  it 
possible,  to  form  one  consistent  whole." — 2  Jar.  on  Wills, 
741,  §  7.  The  import  of  other  parts  of  the  will,  in  this 
case,  touching  the  same  subject  with   the  second  clause, 


SUriiEME  COURT 


Wynne  and  Wife  v.  Walthall. 


must  be  determined,  in  order  that  we  may  find,  if  pos- 
sible, a  construction  which  will  give  harmonious  operation 
to  each. 

The  first  is,  obviously,  the  leading  and  main  clause  of 
the  will,  to  which  all  the  others  arc  rather  supplementary, 
adding  those  more  minute  directions,  which,  on  account 
of  its  comprehensiveness,  could  not  be  embraced  in  it. 
The  first  expresses  the  general  testamentary  purpose  and 
plan.  The  others  were  designed,  not  materially  to  vary 
that  plan,  but  to  adapt  the  process  of  executing  the  will 
to  the  condition  of  the  family;  to  give  specific  directions 
as  to  particulars  necessarily  omitted  in  the  generality  of 
the  first  clause,  and  to  anticipate  contingencies  of  death 
in  the  family.  This  general  view  of  the  instrument, 
drawn  from  a  careful  reading  and  comparison  of  all  its 
parts,  will  assist  in  the  comprehension  of  any  clause  of 
doubtful  construction. 

The  iirst  clause  makes  a  sweeping  bequest  of  all  the 
testator's  property,  real  and  personal,  to  be  equally  divi- 
ded, "share  and  share  alike,"  between  his  wife  and  chil- 
dren ;  directs  that  it  shall  be  kept  together  and  managed 
by  the  executors,  and  that  the  shares  of  his  children  shall 
be  set  apart  to  them — the  son's,  when  he  attains  majority | 
and  the  daughters',  when  they  attain  majority,  or  marry 
with  the  consent  of  their  guardians.  This  clause,  while 
it  postpones  the  time  of  reception,  unquestionably  gives 
an  equal  rested  interest,  to  each  one  of  the  testator's 
family  in  his  entire  property,  and,  of  course,  in  the  subse- 
quently accruing  profits  thereof,  unless  it  is  controlled  by 
other  parts  of  the  will. — Cox  v.  McKinney,  32  Ala.  4G1; 
High  v.  Worley,  ib.  709;  Thrasher  v.  Ingram,  ib.  045; 
Stearns  v.  Weathers,  30  Ala.  712;  Savage  v.  Benham, 
17  Ala.  119. 

If  the  second  clause  receive  such  a  construction  as  to 
bestow  upon  the  widow  as  much  as  she  desires  of  the 
profits  of  the  estate,  for  her  exclusive  use,  it  infringes  the 
first  clause,  and,  in  part,  abrogates  it;  for  the  first  clause 
clearly  disposes  of  all  the  testator's  property  in  terms 
comprehending  the   income  as  well  as  the   corpus,  and 


OF  ALABAMA. 279 

Wynne  and  Wife  v.  Walthall. 

requires  perfect  equality  in  the  division  of  the  entire 
property  between  the  wife  and  children.  The  children 
were  all  of  tender  years  at  the  testator's  death;  and  the 
payments  to  the  widow,  under  the  second  clause,  must 
necessarily  be  continued  through  a  long  period  of  time. 
If  the  widow,  during  that  period,  after  the  payment  of 
the  debts,  is  to  receive,  at  her  option,  the  entire  income 
of  the  estate,  (which,  in  the  interim,  may  duplicate  itself,) 
in  exclusion  of  her  children,  the  entire  spirit  and  intent 
of  the  first  clause  may  be  defeated,  and  the  widow  may 
stand,  at  the  time  of  the  division,  the  recipient  of  more 
than  double  as  much  as  the  children,  whom  the  testator 
designed  to  favor  equally  with  herself*  in  the  bestowment 
of  his  bounty. 

Certainly,  the  first  clause  must  yield  to  the  second,  if 
the  conflict  between  them  is  irreconcilable.  Bui  the  rule 
which  sacrifices  the  former  of  two  contradictory  clauses, 
is  only  applied  after  the  failure  of  every  other  attempt  to 
give  to  both  such  a  construction  as  will  render  them 
equally  effective. —  Pace  v.  Bonner,  27  Ala.  307;  Miller  v. 
Flouruoy,  26  Ala.  724;  Thrasher  v.  Ingram,  82  Ala.  645- 
;  1  Jar.  on  Wills,  416;  2  ib.  741s  We  are  to  inquire, 
therefore,  whether  there  is  a  possible  harmonious  con- 
strue! ion,  for  the  two. 

Th  an--',  as   we   have  seen,   on  account   of  the 

ality  of  its  scope,  m  SCC88  ari ly  omitted  the  adaptation 

of  tin'  pi  ing  the  wili   to  the  i  >n  of 

the  testator's  family.     It  made  no  provision  for  the  main- 

te  widow,  or  for  the    support   and  education 

of  tic  children,  still   in  infant  helplessness,  during  the 

racted  period  antecedent  to  the  di visit  ate. 

preservation  of  the  family  relation    was    so  opvi 

natural,  ami  condition,  that  ai 

♦  provision  upon  the  subject  was   not  requi 
th"  w  ill  must  ha\  framed   in  i  i  re- 

That  i'  was  anticipated  by  the  testator,  i    indicated 
iu  the  direction  of  the  fourth  clause,  for  the  pur 

Ln  the  villa,  rn,  an  1  ihe  erectiou  upon  it 

of  a  suitable  house  for  the  n  It  can 


i .  SUPREME. COURT 

Wynne  and  Wife  v.  Walthall. 


ipposed,  that  the  testator  intended  a  residence, 

procured  by  the  executors  at  the  expense  of  an  estate 
Conveyed  by  a  previous  clause  to  the  wife  and  children  in 
equal  shares,  should  be  occupied  by  the  wife  alone,  with- 
out the  children,  whose  tender  years  made  them  neces- 
sary subjects  of  maternal  care.  How  was  it  designed 
that  this  family  of  widow  and  children  should  be  main- 
tained after  the  discharge  of  the  debts  of  the  estate? 
The  executors  could  not,  consistently  with  the  will,  main- 
tain them,  either  out  of  the  income  of  the  estate,  or  the 
corpus  of  the  property:  for  in  the  second  clause  there  is 
an  unmistakable  direction,  that  so  much  of  the  income 
as  the  widow  may  leave' shall  be  invested,  and  the  prop- 
erty itself  is  required  to  be  kept  together  and  divided  at 
the  appointed  time.  The  widow  has  certainly  the  means 
of  maintaining  herself  out  of  the  profits  from  which  she 
is  authorized  to'draw  by  the  second  clause;  but  how  are 
the  children  to  be  maintained  and  educated?  It  is  im- 
possible that  the  family  should  be  kept  together,  in  a 
common  residence,  and  that  the  widow  should  maintain 
herself  from  the  payments  to  her  out  of  the  income, 
without  a  participation  by  the  children.  The  will,  in  its 
operation,  therefore/necessarily  leads  to  the  maintenance 
of  the  children  out  of  the  fund  drawn  by  the  widow  from 
the  profits  of  the  estate.  This  result,  so  obvious,  must 
have  been  intended.  It  is  inconceivable,  that  the  testator, 
having  in  the. second  clause  directed  his  attention  to  the 
operation  ol  his  will  upon  his  family  before  they  could 
receive  their  respective  shares,  should  have  had  regard  to 
his  wife  alone,  and  intentionally  left  his  children  without 
a  maintenance;  and  yet  he  has  done  that  unnatural  thing, 
if  the  children  are  not  to  be  maintained  out  of  the  profits 
drawn  by  the  widow;  for  he  follows  up  the  bequest  out  of 
the  income  in  favor  of  the  widow,  with  the  direction  for 
the  investment  of  the  residue. 

For  reasons  similar  to  those  from  which  we  deduce  the 
children's  right  to  a  maintenance  out  of  the  income  re- 
ceived by  the  widow,  we  decide,  that  she  must  be  re- 
stricted as  to  the  purpose  for  which  she  may  draw  upon 


OF  ALABAMA.  281 


Wynne  and  Wile  v.  Walthall 


the  income.  The  executors  must  pay  over  to  her  as  she 
may  desire';  but  the  payments  must  be  for  the  purpose, 
and  as  the  means  of  maintaining  herself,  and  maintaining 
and  educating  the  children.  If  the  widow  is  allowed  to 
take  the  whole  of  the  income,  whether  desired  tor  those 
purposes  or  not,  the  spirit  of  equality  as  between  herself  • 
and  children,  which  pervades  the  will,  is  disregarded;  the 
equality  of  right  declared  by  the  first  clause  is  infringed-; 
the  widow,  at  the  time  appointed  for  the  divisiou,  will 
receive  her.  share  accumulated  from  the  income  of  the 
Common  property  of  herself  and  the  children,  and  there 
will  be  no  remainder  of  the  income  to  be  invested,  as 
contemplated  by  the  last  clause  of  the  second  item. 

If  the  sceond  clause  be  so  construed  as  to  give  to  the 
widow  a  right  to  take  the  profits  to  the  extent  of  her  de- 
sire, for  the  purpose  of  maintaining  herself,  and  main- 
taining and  educating  the  children,  it  merely  modifies 
the  operation  of  the  first  clause  to  suit  the  necessities 
and  condition  of  the  family  before  the  division.  Such 
was  the  effect  which  the  testator  designed  it  should  have. 
lie  intended  that  the  widow,  in  whom  he  confided,  should, 
without  stint  or  question,  draw  from  the  profits  for  the 
purposes  above  stated,  and  that  she  should  thus  be  saved 
from  the  annoyance  and  humiliation  of  having  the  means 
of  maintaining  herself  and  children  measured  out  to  her 
according  t<t  legal  rules.  He  thus  provided  an  equality 
of  benefit  for  wife  and  children,  consistent  with  the  first 
flause,  and  with  the  spirit  of  the  will,  but  dispensed  with 
ncss  in  its  adjustment. 

In  attaining  this  construction  of  the  second  clause,  we 
do  not  vary  the  meaning  of  any  of  it-  Words.  We  leave 
Itltouched  the  direction  ■  ,,,-  to   the  widow,   from 

to  time,  as  Bhe  may  require,  such  part  of  the  annual 
sire.     We  only  declare  the  purp 
tor  which  those  paym<  ftde.      In  doing  this, 

we  are  justified   by    the  rules  already  stated,  ami  by  the 
rule  which  requires  that  words  should  be  supplied  in  order 
!i«-  intention. — i  McMillan,  8  Port 

1  Jar.  on  \\  >.  1. 

19 


SUPREME  COURT 


[n  v.   Ilili.    _   Des.   Iv,  and 

Vimduyne.     I    SfcO   Id    '  11  of 

traotioa  arose,  which  wi  entical  with  l 

which  arises  in   Ihii  the  maintenam 

children  ;  and  tl  nue  which  v 

inthiecaae.  -•>.    M .•!..     !    v     McDonnell,   <J 

raid  v.  Jonas,  1  Manf.  150. 

Hitch   have  been   aln  ady  indical 
true  the  fourth  elaase  aa  investing  the  widow  with 
the  right  to  nse  the  lot  bought  and   dwelling-house  built 
thereon   in   pursuance  of  thai   clause,   and  the  children 
have  1  hi  to  share  with  her  its  enjoyment ;  but 

house  and   kA   are  the  property  of  tlje  estate,  si 
diatribution  onder  the  first  clan 

Tl  i  chancellor  is  affirmed. 


\Y\  .  WHISENANT. 

\     r.\  \  i  I    v..  mn  ■  i     m  \  ki  ...  : 

1.  /'■■'■  ^  d  not  demurrable  on 
tlmt  account. 

2.  Ill  I  ttion  of  a 

partly  illegal,  il  the   Mr  hole  note;  but   the  maker,  when 

ihc  illegality, 
ilion. 

When  no  pleae  appear  in  the 
!■ [.<ll.it.>  court  will  pn'Mimo   that  proper] 
filed  oourt  adm 

Appkal  from  th  i  Court  of  Calhoun. 

Tried  before  the  Lion  S.  D.  II  \u:. 

This  action  Wl  fit  by  M.  W\  Wynne,  against  W< 

.1.  Whisenaut;  aifd  was  founded  on  the  defendant's  pro* 


OF  ALABAMA;  283 


WhisMiant. 


paissorj  i  er  Id,  1854,  and 

payable  on   the   Is!    day  of  May   m  with 

interest  from  date.     No  pleas  appear  iu  the  record.     Od 

the  trial  before  the  jurj . 

after  the  plaiutili  had  read  in  e\  i  ■,.■  note  «. 

in  his  complaint,  lanl  proved  that,  a  abort  time 

re  the  note  was  •  had   been  a  fight  be- 

tween   him   and   his  •>  the  on<-  side,  and  the 

plaintiff  on   the  other;  that    the  plaintiff  bad   sustained 
considerable  personal   injury  in  the  fight,  and   had  i 
ward  oat  a  warrant  against   the  d<  and  his 

two  e,  for  an  aeaault  and 

and  then  ii  evid  g  to 

show,  that  the  oonsideratioi  1   note  was  an  ag 

men)  betwe<  n  plain  tin*  and   d<  Pendant,  to  th  that 

plaintiff  would  stop  said  prosecution,  and  would  in 
tend  the  circuit   court,  bat  would  Lr"  put  of  the  county. 

plaintiff  introdu<  odutg  to  that 

the  &  a  of  Baid  I  he  injuries  Lnfl 

on  hie  person  in  the  fight.     The  defendant  1 
at  the  n.  I  circuit  court  for 

and  hi-  '  I   ;' 

pro] 

(amined  as  a  witness  in  be!  the 

To  • 
■  laintiff  •  d  aud  ii . 

.  i 
The 

Which  gr 

plaintiff  ill 

as  error. 


-I  PREME  ■ 


'nnnt. 


.  I'..  Martin,  for  appellant. 
•..  ft  .In<».  White,  eonlra. 

STONE,  J.— {July  I.  I860.]— If  the  defendant  in  •" 
bad  pleaded,  that  the  consideration  of  the  n 
on  was,  thai  tin*  plaintiff  should  abandon  the  prosccutioto 
,<1  instituted  again  si  the  defendant — should  leave  the 
ppeat  as  a  witness  on  tl.  i  nd  that 

the  plaintiff,  in  violation  of  his  agreement,  1  lared 

and  given  evidence  on  th<    trial      cainat  defendant, — the 
.  would,  perhaps,  be  double,  and  unnecessarily  prolix; 
but  a  demurrer  to  it  would   not  be  sustained.    The  ]>lea 
being  in  this  form,  no  one,  we  apprehend,  would  gaii 

the  defeudant  to  introduce  evidence  in  sup* 
each  averment  in  th< 
Again:  Tl  of  Kirkman  v.  Eaton,  (35  Ala.  2 

least,  .-iii  implied  authority  for  the  proposition,  that 

who  has  ;i  valid  it,  Oil 

ground  of  illegality  .  may  waive  that 

fie  defense,  and  rely  on  the  averment  that  th 
mentium — the   concurrence  of  minds   I  the 

tracting  partis — has  never  been  consummated.    In 
the  ted,   although   the   note  was  executed  to  be 

red,  ami  was  wagered  on  the   result  of  an  election 
was  pending;  yet  the  plaintiff  recovered  in  the  court 
w,  and  the  judgment  was  affirmed  in  this  court. 
The  plaintiff  having  declared  specially  on  the  note  in 
i,  which  note  purported  to  be  Bigned  by  the  party 
■  be  charged,  he  made  out  a  pn  for 

ery    when    he    read    hie    note    in   evidence. — Code, 
petent   for  defeudant,   under  an 
approprii  e,  to  prov<    that  the  consideration  was, 

er  in  whole  or  in  part,   illegal;  or,  waiving  that,  to 
that  the  plaintiff  had  \  arl  of  the  agree- 

ment, which  furnishi  ation  of  the  promise. 

It  the  consideration  was  in  part  illegal,  it  avoided  the 
whole  note.— 1   Story  on   Contr  .   159;  1  Par- 

sons on  Cont  • 

In  the  present  record  there  are  no  pleas.     In  such  case, 


OF  ALABAMA. 


McGill  v.  Monette. 


it  is  our  duty  to  presume  that  proper  pleas  were  filed  to 
let  in  the  evidence.— Shep.  Dig.  572,  §  152. 

The  first  ami  second  exceptions  of  defendant  arc  covered 
"by  what  wo  have  said  above.     There  ia  nothing  in  the 
third  exception.     It  was  certainly  permissible  for  ei 
party  to  pr  ve  the  iv.  leratioo  of  the  note. 

Judgment  affirmed. 


McGILL  vs.  MONETTE: 

f  ACTIOS  AGAINST  OWNERS  OF  STEAMBOAT  Pi  K1  I.. 

■  ■•■■  A  bailee  for  reward,  I 
■ 

■  of  destii  naintain  an  artion  in  hi* 
own  mbpat,  for  the  i 

of   their  servants  in  the  transportation  of  the 
ird,  ana  was  compelled  t< 
io  the  owners  of  .1 

•v.  — An  objection  1 
on 
whi  !].  ,  annol  when  the 

■  '1  in  e\ 

■ 
■  ■     1 

!ktc 
• 

I  not 
1 1  1 

■ 


I'REME  COURT 

II  t.  Moi 


from  tho  breach  of  ithin 

7.  ■  not 

I   'ii  in  the 
the  appell 

Prom  the  City  Court  of  Mobile. 
Tried  before  the  Bon.  by. 

Tn  hn  W.  Mom 

William   BicGIIl  and   Harvey  .  bul  was  :\y 

abaft  Snow,  who  died  before  the  trial.     The  com- 

plaint contained  two  counts,  in  sub  -follows:  1. 

a   the  8th    December,  18f)5,  plaintiff 
■  .   be  delivered   to  defendants,  at  their  s]  i 
and  re  tain  barge  laden  with  eight 

bushels  a,  the  property  of  plaintiff,  and 

with  two  hundred  and  forty-foor  I  .  the 

of  divers  otb<  r  pei  which  plaintiff  had  un- 

ken  for  a  reasonable  reward  to  carry  anil  safely  de- 
liver at  Mobile,  (the  dam  the  river  only  excepted,) 
to  i  laid  defeodai  and  carried  to 
Mobile,  for  I              ible  reward  in  that  behalf;  yet 

heir  duty  in  that  behalf,  con. 
ducted  themselv*  and   negligently  in  the 

if  said  barge,  thai  said  barge  was  sunk;  whereby 
orn  wai  ed  and   lost,  and  said  cotton 

itly  damaged,  and  plaintiff  thereby  lost  his  reward,' 
and   was  compelled   to  pay  a   large  Bum   of  mom 
dam.  _'.   For  that  where:,.,  on  the  8th   December, 

lanta  being  the  owners  of  the  steamboat 
.  plaintiff  delivered  to  the  captain  of  said  steam- 
laden  with  corn  and  cotton,  the  pro* 
perty  of  plaintiff  and  divers  other  persons,  which  plaintiff 
had  undertaken  to  carrj  to  Mobile,  and  there  safely  to 
deliver  in  good  order,  the  dangers  of  the  river  on!;. 
cepted,)  and  for  which  be  was  to  receive  from  the  owners 


OF  ALABAMA.  287 


M.  Gill  v.  ttonefte. 

of  said  cotton  a  reasonable  reward;  wbieh  Baid  barge  was 

to  Ite  safel}-  towed  to  Mobile  by  the  defendants'  Baid 
nt,  for  a  reasonable  reward  to  the  defendants  in  that 
behalf;  yet  defendants'  said  agent,  not  regarding  his  duty 
in  that  behalf,  conducted  himself  so  carelessly  and  negli- 
gently, in  and  about  the  towing  and  carrying  of  said 
barge,  that  the  said  barge,  by  reason  thereof,  was  filled 
with   water  and  sunk;  "win  Rid  corn  was  greatly 

damaged  and  destroyed,  and  plaintiff's  said  freight,  or  a 
great  part  thereof,  was  wholly  lost  to  him,  and  said  cotton 
was  greatly  damaged,"  &c. 

The  defendants  demurred  to  each  count  of  the  com- 
plaint, so  far  as  it  sought  a  recovery  for  the  damage  done 
to  the  cotton  of  third  persons,  "because  it  is  no  where 
shown  that  plaiutiff  was  bound  by  his  contract  with  said 
'divera  other  persons'  to  pay  them  for  any  damage  done 
to  their  cotton  in  its  transportation  upon  his  barge;  m>r, 
if  there  was  any  contract,  that  the  same  wa>  known  to 
tin'  defendants;  nor  that  plaintiff  was  obliged  in  law  to 
them   for  injury   done  to  their  cotton  as  .   but 

said  obligation   is  alleged,   as  a  conclusion  of  law,  from 
-    not    made  to  appear  in  either  of  said    counts;   and 
i  count   shows  tl  to  the  cotton,  the  ac- 

tion  should  have  been   brought  in  the  owners'  nai 
The  court  overruled  the  demurrer;  and  the  defendants 
then   pli  aded,  in  short  by  con-rut,  ti  al  issue,  and 

the  statu t<   of  limitations  of  one  year;  o  i Which 

the  trial,  as  the  bill  of  exceptions  shows,  the  plain- 
ft'ered  in  evid  tion  of  one  Raby,  which 

had   been  tal  nd  cross-interrogato- 

.  and  had  been  published  at  tl  ding  term  of 

the   court.     At    the   time  ot  filing  cross-int- 
defendant's  com  i  on  the  into 

in  chief  '  '     ■  •  e  ami  affidavit  wa 

and  a  comn  .   but 

daut  reijuii 
and  pla< 

:    to  the   : 


288  SUPREME  COURT 


McGill  v.  Monette. 


notice  had  been  given  to  him  of  the  time  and   plac 
which  it  was  to  ne  taken.     The  court  overruled  the  mo- 
tion, on   the  ground  that  it  came  too  late;  and  the  de- 
fendant excepted. 

]t  was  admitted,  that  the  plaintiff's  barge,  laden  with 
cotton  and  corn,  was  delivered  to  the  steamboat  Osc 
t»  be  towed  to  Mobile;  that  while  said  steamboat  was 
sliding  the  river,  with  the  barge  in  tow,  she  was 
passed  by  the  TUinois  Belli  :  that  the  waves  caused  by  the 
two  boats,  in  meeting  and  passing  by  caofc  other,  swept 
over  the  barge  and  sunk  it ;  and  that  the  Osceola  at  that 
time  belonged  to  the  defendant  and  said  Harvey  Snow. 
But  the  evidence  was  conflicting,  as  to  the  terms  of  the 
Contract  by  which  the  captain  of  the  steamboat  undertook 
to  tow  the  barge,  and  as  to  the  remote  cause  of  the  sink- 
ing of  the  barge.  The  plaintiff's  evidence  tended  to 
show,  that  his  barge  was  properly  laden;  that  the  steam- 
boat contracted  to  tow  it  safely  to  Mobile;  that  the  cap- 
tain of  the  steamboat  afterwards  took  in  tow,  against  the 
plaintiff"  ll8t ranees,  two  barges   heavily  laden  with 

wood,  which  were  almost  in  a  sinking  condition;  and 
that  in  attaching  these  barges  to  the  steamboat,  the  ropes 
Were  passed  across  the  plaintiff's  barge,  in  such  a  manner 
that  it  was  forced  down  into  the  water,  and  was  not  able 
to  ride-  the  waves  when  the  other  steamboat  passed.  On 
the  other  hand,  the  defendant's  evidence  conduced  to 
show,  that  the  plaintiff's  barge  was  loo  heavily  laden  ; 
that  the  captain  of  the  steamboat  declined  to  tow  it  on 
that    account,  and   only  C  i  d    to  do  so  on  the  plain- 

till'  assuming  the  risk  ;»and  that  the  barge  was  sunk  in 
consequi  nee  of  its  being  over-laden,  and  not  in  conse- 
quence of  any  m  •  or  unskillfulness  on  the  part  of 
the  officers  of  the  Bteamboat.  The  plaintiff  offered  in 
evidei  al  suits  brought  against  him 
by  third  persons,  which,  it  was  admitted,  "were  brought 
to  recover  damages  for  injuries  done  to  the  cotton  op  his 
barge  when  it  was  sunk,  while  in  tow  by  the  Osceola ;" 
and  also  several  receipts  for  moneys  paid  by  him  toother 
persons,  for   damages   done  to  their  cotton  while  ©n  his 


OF  ALABAMA.  289 


McGill  v.  MonettG. 


barge  at  the  same"  time.  The  defendant  objected  to  the 
admission  of  these  judgments  and  receipts  as  evidence, 
"on  the  ground  of  irrelevancy  ;"  the  court  overruled  the 
objections,  and  allowed  said  judgments  and  receipts  to  be 
read  in  evidence,  "for  the  single  purpose  of  showing  that 
the  several  amounts  therein  specified  bad  been  claimed  and 
demanded  of  plaintiff,  by  the  several  owners  of  the  cot- 
ton, for  damages  done  to  their  cotton  while  on  plaintiff's 
barge  in  tow  of  theOsceofo;"  and  the  defendant  excepted. 

The  plaintiff  introduced  one  iStollen  worth  as  a  witness, 
who  was  a  partner  in  the  house  of  J.  A.  Wetnyss  &  Co. 
of  Mobile,  to  wbom  some  of  the  cotton  on  the  plaintiff's 
barge  was  consigned;  who  testifiecLto  the  price  at  which 
the  damaged  cotton  was  sold,  and  to  the  damage  sustained 
from  the  submersion  in  the  water.  The  defendant  moved 
the  court  to  exclude  from  the  jury  the  entire  testimony 
of  this  witness,  "on  the  ground  that  it  was  not  legal  evi- 
dence," because  the  witni  88  did  not  testify  to  facts  within 
his  personal  knowledge.  The  court  overruled  the  objec- 
tion, and  the  defendant  excepted. 

The  defendant  requested  the  court  to  instruct  the 
jury — "1st,  that  the  plaintiff  cannot  recover  for  any  dam.' 
age  supposed  to  be  1  by  cotton  in  this  transac- 

tion, when  the  owners  ol  such  cotton  have  not  demanded 
any  damages  of  him,  and  when  he  ha-  not  paid  them  any 
damage.;  2dly,  that  if  they  believe  the  captain  of  the 
Bteamboal  did  nol  conti  I  iw  the  I  fely,  but 

that  the  risk  was  to  be  taken  by  the  barge,  then  the  stat- 
ute of  limitations  of  one  year  would  apply.''  The  court 
refused  each  of  th<  -••  <  harg  3,  but  instructed  the  jury,  in 
connection  with   the  refusal  ol  the  second  cl  'that 

unless  the  plaintitl  made  out  to  the  action  a  con- 

tract ol  towag  uld  not  recover;  and  that  therefore 

t   limitations  of  1  ir  had  ■bthing  to 

with   the  to  which  charge  ti 

ed. 
The  ru  .  on  the  1 

e,  and  in  the  el:  1  the  jury,  are  now  assigucd 

as  error. 


290  SITREME  COURT 


MoGill  v.  Monntte. 


E.  S.  Dargan,  with  Jno.  Hall,  for  appellant. 
Robert  II.  Smith,  contra.  : 

R.  W.  WALKER,  J.— [June  7,  I860.]— 1.  The  demur- 
rers to  the  complaint  were  properly  overruled.  Although 
the  plain  tiff  held  the  cotton  as  bailee,  yet  it  was  compe- 
tent for  him  to  sue  in  his  own  name  on  the  contract  made 
with  the  defendants.  If  it  be  conceded  that  his  right  to 
sue  on  this  contract  is  dependent  on  his  liability  over  to 
his  principals,  it  is  plain  that  this  liability  results,  as  mat- 
ter of  law,  from  the  allegations  of  the  complaint. — Cox 
v.  Easley,  11  Ala.  369;  Steamboat  Farmer  v.  McCraw, 
26  Ala.  204;  Story  on  Bailments,  §  94;  1  Parsons  on 
Contracts,  633;  Hare  v.  Fuller,  7  Ala.  717. 

2.  The  objection  to  the  deposition  of  the  witness  Raby 
came  too  late. — Code,  §  2328. 

3-4.  The  transcripts  and  receipts  were  ottered,  in  con- 
nection with  the  written  agreement  of  counsel  which  is 
6et  out  in  the  bill  of  exceptions,  for  the  single  purpose  of 
proving  that  the  owners  of  the  cotton  had  demanded  of 
the  plaintifi  compensation  for  the  injury  it  had  sustained 
while  the  barge  was  in  tow  of  the  steamer.  There  is 
6ome  reason  to  in&r  from  the  bill  of  exceptions,  that  this 
evidence  was  offered  to  rebut  evidence  of  a  contrary  ten- 
dency previously  introduced  by  the  defendant.  However 
this  may  be,  it  does  not  lie  in  the  mouth  of  the  appellant 
to  say,  that  the  making  of  such  demand  by  the  owners  of 
the  cotton  was  no£  a  matter  involved  in  the  issue  before 
the  jury,  or  that  the  admission  of  evidence  competent  to 
establish  that  fact  should  work  a  reversal  of  the  judg- 
ment. The  bill  of  exceptions  clearly  shows,  that  one  of 
the  matter!  of  defense  relied  on  by  the  defendant  was, 
that  the   owners  of  the  cotton  had  made  no  demand  of 


compensatiiH ;  and  that  he  asserted  on  the  trial  the  legal 
proposition^  that  the  plaintiff  was  not  entitled  to  recover 
without  proving  such  demand.  Having  thus  insisted  upon 
the  necessity  of  such  evidence,  as  essential  to  make  out 
the  plaintiff's  cause  of  action,  he  cannot  now  shift  his 
ground,  and  be  heard  to  say  that  the  very  evidence,  with- 


OF  ALABAMA.  291 


MoGill  v.  Monette. 

out  which  he  then  claimed  that  the  plaiiTtif  could  not 
recover,  was  in  fact  irrelevant  and  illegal.  If,  therefore, 
the  fact  of  demand  was  irrelevant,  the  appellant  is  estop- 
ped from  saying  so.  Ilence,  the  only  objection  which  he 
can  here  urge  to  the  admissibility  of  the  transcripts  and 
receipts  in  evidence,  is,  not  that  the  fact  which  they  were 
introduced  to  establish  was  irrelevant,  but  that,  assuming 
it  to  have  been  relevant,  they  did  not  constitute  a  proper 
or  legal  means  of  proving  it.  There  is  nothing  in  this 
objection;  for  it  is  clear  that,  in  connection  with  the 
agreement  referred  to,  the  judgments  and  receipts  did  tend 
to  show  that  the  parties  who  obtained  the  judgments  aud 
executed  the  receipts,  had  demanded  of  the  plaintiff  com- 
pensation for  the  damage  done  to  their  cotton.  They 
were,  therefore,  competent  evidence  of  that  fact. — Dar- 
rington  v.  Borland,  3  Porter,  9;  1  Greenl.  Ev.  §§  528, 
538-9;  Ilarrell  v.  Whitman,  20  Ala.  519;  Goodman  v. 
Walker,  30  Ala.  500. 

5.  The  suit  was  for  damages  arising  from  the  breach  of 
a  contract.  If  the  plaintiff  did  not  establish  the  con- 
tract, and  its  breach,  he  was  not  entitled  to  recover.  It 
follows,  that  the  statute  of  limitations  of  one  year  had 
nothing  to  do  with  the  case. 

6.  Some  of  the  evidence  T>f  the  witness  Stollen worth 
was  clearly  admissible;  and  the  motion  being  to  exclude 
the  whole  of  his  testimony,  there  was  no  error  in  over- 
ruling it. 

7.  The  other  assignments  of  error  are  not  insisted  on 
in  the  briefs  of  the  counsel  for  the  appellant,  end  we  do 
not  notice  them. 

Judgment  affirmed. 


292 SUPREME  COURT 

Wood  <t  Kimbrough  v.  Fowler. 


WOOD  &  KIMBROUGH  vs.  FOWLER. 

[action  ox  notr  given  for  pckchase-moxey  of  slave.] 

'.-off;  nonsuit  on  verdict  for  less  than$50. — In  an  action  on  a  note 
given  for  the  purchase-money  of  a  slave,  damages  for  a  misrepre? 
Bentatian  or  breach  of  warranty  of  soundness  constitute  a  good 
set-off,  (Code,  \  2240:)  and  if  the  amount  of  the  plaintiff's 
recovery  is  thereby  reduced  to  less  than  fifty  dollars,  he  cannot  be 
nonsuited  under  section  2865. 

Appeal  from  the  Circuit  Court  of  Wilcox. 
Tried  before  the  Hqh.  Nat.  Cook. 

This  action  was  brought  by  D.  C.  Fowler,  against 
John  B.  Wood  and  Burrell  Kimbrough;  and  was  founded 
on  the  defendants'  promissory  note  for  $452,  dated  the 
16th  April,  185G,  and  payable  on  the -1st  January,  L858. 
The  defendants  pleaded  the  general  issue,  and  a  special 
plea  in  these  words:  "And  for  further  plea  defendants 
say,  that  the  note  sued  on  was  given  as  part  of  the  pur- 
chase-money of  a  slave  named  King;  which  said  slave 
was  sold  by  said  plaintiff  to  the  defendant  Wood  on  the 
16th  April,  185G,  and  which  said  slave  the  plaintiff  then 
and  there  warranted  to  be  sound  in  body  and  mind,  when 
said  slave  was  in  fact,  at  the  time  of  said  sale,  unsound 
both  in  body  and  mind."  The  jury  returned  a  verdict 
for  the  plaintiff,  for  one  dollar  as  damages;  and  the  de- 
fendants thereupon  moved  the  court  to  dismiss  the  suit, 
on  the  ground  that  the  verdict  was  for  a  less  sum  than 
the  court  had  jurisdiction  of,  while  the  amount  of  the 
plaintiff's  recovery  had  not  been  reduced  "by  a  set-off 
successfullyfftiade."  The  court  held,  that  the  defense 
made  under  the  special  plea  above  copied,  constituted  a 
"set-off"  within  the  meaning  of  the  statute;  and  there- 
fore overruled  the  defendants'  motion.  The  defendants 
excepted  to  this  decision,  and  they  now  assign  it  as 
error. 


OF  ALABAMA.  293 


Loii";mire  v.  Pilkington. 


Watts.  Judge  &  Jackson,  for  appellants. 
D.  W.  Baine,  contra. 

A.  J.  WALKER,  C.  J.— [Jane  21,  I860.]— Damages 
for  breach  of  warranty,  or  misrepresentation  of  the  sound- 
ness of  a  slave,  may,  under  section  2240  of  the  Code,  as 
construed  in  Holly  v.  Younge,  (27  Ala.  203,)  and  Gibson 
v.  Marquis,  (29  Ala.  668,)  be  setoffagaint  the  note  given 
for  the  slave,  when  sued  upon  by  the  seller.  The  defense 
that  such  damages  have  been  sustained,  when  thus 
brought  forward,  may  with  strict  propriety,  under  our 
system,  be  denominated  a  set-off;  and  wo  must  under- 
stand it  as  being  a  set-off  within  the  meaning  of  section 
2365,  in  order  that  that  section  and  section  2240  may 
have  a  harmonious  operation. 

Judgment  affirmed. 


LONGMIRE  vs.  PILKINGTON. 

[tkovkr  fok  conversion  of  horse.] 

1.  Wlien  guardian  may  sue. — Under  the  provisions  of  the  Code, 
($$2036,  2132,)  a  guardian  may  sue  in  his  own  name,  for  the  use  of 
hi-  ward,  to  recover  damages  for  the  oenveraion  of  the  ward's 
property. 

2.  Amendment   of  complaint. — Under   the    provisions  of    the   I 

(t%  2402-3,)  where  the  summons  is  in  filename  of  the  plaintiff  in- 
fedividually,  the  complaint  may  be  so  amended  as  to  show  that  he 
uardian  of  a  minor,  and  for  the  usejof  his  ward. 

APPEAL  from  the  Circuit  Court  of  Mouroe. 
Tried  before  the  Hon.  C.  W.  Rapier. 

This  action  was  brought  by  James  Pilkington,  against 
Qforrett  M.  Longmire  and  Richard  P.  Longmire,  to  re- 
cover damages   tor  the  conversion  of  a  horse.     In  the 


SUPREME  COURT 

Longmire  v.  Pilkington, 

original  complaint,  the  plaintiff  sued  in  his  own  right, 
and  alleged  that  the  horse  was  his  property.  An  amended 
complaint  was  afterwards  filed,  in  which  the  plaintiff  was 
described  as  "James  Pilkington,  as  guardian  of  Margaret 
Pilkington,  a  minor,  and  who  sues  for  the  use  of  said 
Margaret  Pilkington  ;•"  and  the  horse  was  alleged  to  be 
the  "property  of  the  plaintiff  as  aforesaid."  There  is  no 
bill  of  exceptions  in  the  record;  but  the  judgment-eutry 
of  the  term,  at  which  the  amendment  was  allowed,  is  in 
these  words:  "'Plaintiff  has  leave  to  amend  his  com- 
plaint, by  adding  to  his  name  the  words,  'as  guardian,' 
&c. ;  to  which  the  defendants  except."  The  defendants 
afterwards  demurred  to  the  amended  complaint — "1st, 
because  .said  complaint  shows  on  its  face  no  cause  of  ac- 
tion in  the  plaintiff  as  guardian;  2d,  because  the  suit  is 
not  brought-  in  the  name  of  the  ward,  by  next  friend; 
3d,  beca«se  the  complaint  shows  no  cause  of  action  in 
plaintiff;  4th,  because  the  ward  cannot  sue,  in  this  form 
of  action,  by  guardian;  5th,  because  the  complaint  does 
not  allege  property  in  the  plaintiff;  and,  6th,  because  the 
complaint  shows  on  its  face' that  the  property  is  in  the 
ward."  The  court  overruled  the  demurrer.  The  allow- 
ance of  the  amendment,  and  the  overruling  of  the  de- 
murrer to  the  amended  complaint,  are  now  assigned  as 
error. 

Anderson  &  Boyles,  for  appellants. 

S.  J.  CUMMING,  contra. 

STONE,  J.— [Feb.  28,  1801.]— The  Code  (§  2036)  de- 
clares, that  "guardians  may  sue  in  their  own  names,  for 
the  use  of  the  ward,  in  all  eases  where  the  ward  has  an 
interest,  and  the  judgment  enures  to  his  benefit."  The 
amended  complaint  in  the  present  case  discloses  an  in- 
terest in  the  ward;  and  if  its  averments  be  true,  the 
judgment  will  enure  to  her  benefit.  The  case,  then,  as 
made  by  the  amendment,  is  precisely  within  the  letter  of 
the  section  of  the  Code  above  copied,  if  that  section  be 
not  qualified  by  some  other  provisions  of  the  Code.     It 


OF  ALABAMA. 295 

Longmire  v.  Pilkingtdn. 


is  contended,  that-  section  2132  qualifies  section  2036. 
We  think  we  give  operation  to  the  latter  section,  (2132,) 
when  we  declare  that  it  would  evidently  govern  suits  by 
infants  who  have  no  guardian.  They  "must  sue  by  their 
next  friend."  possibly  there  are  other  cases  to  which 
section  2132  would  apply. 

We  hold,  then,  that,  in  suits  like  the  present,  the  guar- 
dian "may  sue  in  his  own  name,  for  the  use  of  the 
ward." 

Section  2130  of  the  Code  relates  to  suits  "brought  in 
the  name  of  the  person  having  the  lty>'l  Htlc,  for  the  use 
of  another."  A  guardian,  as  such,  has  not  the  legal  title 
of  his  ward's  estate;  and,  hence,  that  section  can  exert 
no  influence  on  suits  like  the  present. — Sutherland  v. 
Goft,  5  Por.  508;  Hooks  v.  Smith,  18  Ala.  341. 

[2.]  If  the  amendment  was  properly  allowed,  we  need 
not  inquire  whether  the  record  sufficiently  raises  the 
question  of  its  allowance.— See  Bryan  v.  Wilson,  27  Ala. 
208;  Felkel  v.  Hicks,  32  Ala.  25.  The  alteration  in  this 
case  was  not  an  entire  change,  or  substitution  of  one 
party  plaintiff  for  another,  Such  change,  under  our  de- 
cisions, would  not  be  allowed. — Leaird  v.  Moore,  27  Ala. 
326;  Friend  v.  Oliver,  ib.  532;  Dwycrv.  Kinnemore,  31  Ala.  t 
404;  Pickens  v.  Oliver,  32  Ala.  626.  The  amendment 
simply  changed  the  character  in  which  the  plaintiff  sued, 
by  showing  that  he  declared,  not  in  his  own  right,  but  in 
that  of  another,  upon  whose  title  the  statute  permits  him 
to  recover.  In  Crimm  v.  Crawford,  (2!>  Ala.  626,)  we 
said,  "To  amend  the  complaint,  so  as  to  show  the  ca- 
pacity in  which  the  plaintiff  sues,  produces  no  inadmis- 
sible departure  from  the  Summons;  for,  notwithstanding 
the  summons  is,  under  the  decisions  ot  this  court,  deemed 
as  oue  in  favor  of  the  plaintiff'  as  an  individual,  yet  it  is 
permissible  for  the  plaintiff',  upon  general  process,  to  de- 
clare as  an  administrator." — See,  also,  Age.-  v.  Williams, 
30  Ala.  636.  The  principle  settled  in  Crimm  v.  <  Jrawford, 
supra,  is  well  sustained  by  authorities,  many  of  which  are 
therein  cited.  We  cannot  distinguish  between  the  ri 
to  amend  in  that  ease,  and  in  this;  and,  hence,  we  hold, 


296  SUPREME  COURT 

Williamson  &  McArthur  v.  Woolf  et  al. 


that  the  amendment  was  properly  allowed  in  the  present 
Judgment  affirmed. 


WILLIAMSON  &  McARTIIUR  vs.  WOOLF  et  al. 

[action  on  official  bond  of  justice  of  the  peach.] 

1.  Authority  of  intendant  of  Cum/lea  as  justice  of  the  peace. — The  4th 
section  of  the  act  "  to  incorporate  the  town  of  Camden  in  Wilcox 
county,"  (Session  Acts,  1841,  p.  54,)  taken  in  connection  with  the 
act  "to  incorporate  the  town  of  Eutaw  in  Greene  county,"  to  which 
it  refers,  although  it  may  not  make  the  intendant  of  the  town,  ex 
officio,  a  justice  of  the  peace,  constitutes  at  least  a  valid  foundation 
for  a  botva-fide  claim  of  office  by  him;  and  if-he  proceeds  to  per- 
form the  duties  of  a  justice  of  the  peace,  on  the  faith  of  his  elec- 
tion as^ntendant,  he  is  at  least  a  justice  de  facto* 

2.  Estoppel  ly  bond. — The  sureties  on  a  bond,  which  recites  that  the 
pricipal  obligor  "  has  been  duly  elected  intendant  of  the  town  of 
C,  and  is  thereby  made  ex  officio  a  justice  of  the  peace,"  are  es. 

1    topped,  when  sued  on  the  bond  for  the  default  of  their  principal. 
from  alleging  that  he  was  not  a  justice  of  the  peace;  it  appearing 
that  he  was  at  least  a  justice  defacto,  and  received  much  business. 
as  a  justice  on  the  faith  and  credit  of  the  bond. 

3.  Validity  and  consideration  of  bond  of  officer  de  facto. — A  bond,  exe- 
cute; intendant  of  an  incorporated  town,  with  others  as  his 
sureties,  which  recites  that,  by  virtue  of  his  election  as  intendant, 
he  "  is  thereby  made  ex  officio  a  justice  of  the  peace,"  and  is  con- 
ditioned for  i  lie  faithful  discharge  of  his  duties  as  such  justice, 
will  be  upheld  a.s  a  common-law  obligation,  (although  there  is  no 
law  requiring  the  intendant  to  give  bond,)  when  it  appears  that  he 
was  at  least  a  justice  de  facto,  and  that  the  bond  is  supported  by  a 
sufficient  consideration  ;  and  if  it  was  given  for  the  purpose  of  pro- 
curing for  the.  intend  ant  patronage  and  business  as  a  justice  of  the. 
peace,  and  he  did  receive  patronage  and  business  as  a  justice  on  the 
faith  and  credit  of  it,  it  is  supported  by  a  sufficient  consideration. 

4.  Demurrer  to  complaint  assigning  good  ami  bad  breaches. — In  an  ac- 
tion on  a  penal  bond,  if  the  complaint  contains  a  single  count, 
assigning  several  breaches,  the  insufficiency  of  one  of  the  assign- 
ments is  not  a  ground  of  demurrer  to  the  entire  complaint. 


OF  ALABAMA.  207 


Williamson  &  McArthuv  v.  Wool?  et  al. 


Appeal  from  the  Circuit  Court  of  "Wilcox. 
Tried  before  the  Hon.  Nat.  Cook. 

This  action  was  founded  on  a  penal  bond,  executed  by 
John  D.  Catlin,  jr.,  (since  deceased,)  D.  S.  J.  W.oolf,  and 
J.  A.  Blakeney,  dated  the  7th  June,  1854,  payable  to  the 
State  of  Alabama,  and  conditioned  as  follows:  "  Whereas 
the  above-bound  John  D.  Catlin,  jr.,  has  been  duly 
elected  Intendant  of  the  town  of  Camden  in  said  county, 
and  is  thereby  made,  ex  officio,  justice  of  the  peace;  now, 
therefore,  should  the  said  Catlin  well  and  truly  do  and 
perform  all  the  duties  which  are,  or  may  be,  required  of 
him  by  law  as  such  intendant,  or,  ex  officio,  justice  of  the 
peace,  then  this  obligation  to  be  void,"  <fcc. 

The  amended  complaint  was  in  the  following  words: 
"Plaintiffs  claim  of  defendants  the  sum  of  §GG5  78, 
for  the  breach  of  the  condition  of  a  bond,"  &c,  describ- 
ing it,    and  setting  out  the  condition.     "Plaintiffs  say, 
that  the  said  bond  was  delivered  to  the  probate  judge  of 
Wilcox  county,  and  was  by  him  approved;  that  the  said 
bond  was  given   by  the  said  Catlin   for  the  object  and 
purpose  of  securing  to  him  thereby  patronage  and  busi- 
es a  justice  of  the  peace;   that  the   said  Catlin  did, 
on  the  faith  and  credit  of  said  bond,  receive  much  patron- 
age and  business  as  a  justice  of  the  peace,  and  was  there- 
by benefited,  by  reason   of  the  large  amount  of  costs  and 
which   he  obtained   from  said  official  patronage  and 
bus;;  secured  to  him  by  reason  of  said  bond;  that, 

according  to  the  recitals  of  said  bond,  said  Catlin  was  an 
acting  justice  of  Ithe  peace  ex  officio^  as  aforesaid,  for 
Wilcox  county,  by  virtue  of  his  office  as  intendant  of  the 
town  of  Camden,  from  the  date  <>l  s  i.  (June  7th, 

'.)  until  October  Loth,  1855;  that, during  said  period, 
rs  claims,  the  property  of  plaintiffs,  were   placed  in 
said^Catliu,  ice  of  the  p< 

mid,  for  suit  and  collection;  and  that  the  condi- 
tion of  said   bond    1  n  broken  by  said  Catlin,  in 
this:  that  the  said   Catlin,  as  such  justice  of  the  peace 
20 


208  SUPREME  COURT 


Williamson  «fc  McArthiir  v.  Woolf  et  al. 


ex  officio  as  aforesaid,  during  the  said  time  he  was  an  act- 
ing justice  of  the  peace  ex  officio  as  aforesaid,  to-wit,  be- 
tween the  7th  June,  1854,  and  the  13th  October,  1855, 
had  and  received  officially  and  ministerially,  for  and  on 
account  of  the  plaintiffs,  divers  sums  of  money  on  the 
claims  above  mentioned,  amounting  in  the  whole  to  the 
sum  of  §665  78;  and  that  he,  the  said  Catlin,  did  not 
pay  the  said  sum  of  money,  or  any  part  thereof,- to  the 
said  plaintiffs,  or  to  any  person  or  persons  authorized  to 
receive  the  same,  but  wholly  failed,  neglected,  and  re- 
fused so  to  do,  to  the  damage  of  the  plaintiffs  as  above 
stated."  (The  opinion  of  the  court  renders  it  unnecessary 
to  set  out  the  second  assignment  ot  a  breach.)  "  Plain- 
tiffs further  say,  that  all  the  said  sums  of  money  collected 
by  said  Catlin,  as  above  set  out,  were  demanded  of  him 
before  the  commencement  of  this  suit,  to-wit,  on  or  about 
the  11th  Jul)',  1854,  the  23d  October,  1854,  and  the  29th 
December,  1855;  and  that  said  several  sums  of  money, 
so  collected  by  said  Catlin,  became  and  were  due  and 
owing  from  said  Catlin  as  justice  of  the  peace  ex  officious 
aforesaid,  before  the  commencement  of  this  suit,  and  be- 
fore the  date  of  said  demands,  and  are  still  in  arrears  and 
unpaid,  contrary  to  the  form  and  effect  of  said  writing 
obligatory,  and  of  the  said  condition  thereof;  by  reason  of 
which  said  breach  of  said  writing  obligatory,  the  same 
became  forfeited;  wherein-  an  action  hath  accrued  to  the 
said  plaintiff,  to  have  and  demand  of  the  said  defendants 
the  said  sum  above  claimed,  with  the  interest  thereon." 

The  defendants  demurred  to  the  complaint — "1st,  be- 
cause said  Catlin  was  not,  by  virtue  of  his  office  as  inten- 
dant  of  the  town  of  Camden,  a  justice  of  the  peace,  ex 
officio,  for  the  county  of  Wilcox,  and  therefore  said  bond 
is  contrary  to  law  and  void;  2d,  because  the  intendantof 
the  town  of  Camden  was  not,  at  the  time  said  Catlin  exe- 
cuted said  bond  with  defendants,  required,  to  give  bond, 
and  therefore  said  bond  is  without  consideration  and 
void;  3d,  because  the  condition  of  said  bond  is  insensible, 
uncertain,  and  therefore  void ;  4th,  because  the  complaint 


OF  ALABAMA.  299 


Williamson  <fc  Mc  Arthur  v.  Woolf  et  al. 


does  not  allege  that  said  Catlin  was  a  justice  of  the  peace 
iu  and  for  Wilcox  county;  5th,  because  the  first  count  in 
said  complaint  is  argumentative,  states  legal  conclusions, 
and  does  not  aver. a  demand;  6th,  because  the  second 
count  is  insensible,  uncertain,  aud  void  for  repugnancy ; 
and,  7th,  because  said  second  count  does  not  aver  a  de- 
mand." The  court  sustained  the  demurrer,  aud  its  judg- 
ment is  now  assigned  as  error. 

The  4th  section  of  the  act,  "  to  incorporate  the  town  of 
Camden,  in  the  county  of  Wilcox,"  is  in  these  words: 
%tBe  it  farther  enacted,  that  the  powers,  privileges,  rights 
and  immunities,  conferred  by  an  act,  entitled  'An  act  to 
incorporate  the  town  of  Eutaw,  in  Greene  county,'  ap- 
proved January  2d,  1841,  are  hereby  transferred  to,  and 
vosied  in,  the  intendant  and  council  of  the  town  of  Cam- 
den, in  the  county  of  Wilcox." — See  Sessiou  Acts  1841, 
54. 

J.  Henderson,  for  appellants.— 1.  The  charter  of  the 
town  oi'  Camden,  taken  in  connection  with  the  charter 
of  the  town  of  Eutaw,  to  which  it  refers,  makes  the  in- 
tendaui.  .  a  jifsticc  of  the  peace;  and  s<  ction  710 

of  'tie  uires  justices  of  the  peace  to  give  bond, 

according  to  the  provisions  of  section  118.  The  bond 
here  sued  on  is  thus  shown  to  be  a  good  statutory  bond; 
and  its  validity,  as  a  statutory  bond,  is  not  affected  by  the 
radded  condition  for  the  faithful  discharge  of  the 
principal  obligor's  duties  as  intendant,  which  will  be  re- 
mrplusage.  — 10  Mir  Barr,  250;  I  Broek, 

ib.  177;  Wl  k,  8  Ala.  466,  and  i 

there  cited.     Tin     d  invoked    by    the    appol 

f&OUtis  i    a   clan  I    nee  in   a  Statu 

application,  since  all  the  pOw  sd  on  the  in- 

if  it   were  held  applicable  al   all,  it 
1  take  away  all  power  from  him. 

ition  is  not  j  >oud,  it 

rtainly  good  at  common  law.     The  S  wer, 

of  all  statutory  provisions,  to  take  a  b 


SUPREME  COURT 


Williamson  &  MeArthur  v.  Woolf  et  al. 


Df  its  officers,  conditioned  for  the  faithful  dis- 
*e  of  his  public  duties;  and  the  courts  will  lend  their 
tance  to  indemnify  parties  who  have  been  injured  by 

the    officer    acting    under   such   bond. — 5  Peters,    115; 

3  Wheaton,  172:  1  Bailey,  211;  7  Conn.  543;  6  Binney, 

292;  Gilpin,  554:  1  Grcenl.  248;  5  Pick.  384;  15  How. 

(U.  S.)304;  3  Cush.  (Miss.)  G25. 

3.  The  allegations  of  the  complaint  show  a  sufficient 
consideration  for  the  bond. — 1  Saunders'  PI.  k  Ev.  1V5; 
Cbitty  on  Contracts,  30;  Hester  v.  Keith,  1  Ala.  316; 
Gayle  v.  Martin,  3  Ala.  503;  Whitsett  v.  Womack.  6  Ala. 

;   5  Pick.  384. 

4.  Catliu  having  enjoyed  the  benefits  arising  from  the 
bond,  the  defendants  are  estopped  from  alleging  its  inva- 
lidity.— Sprowl  v.  Lawrence,  33  Ala.  688;  8^Ala.  466;; 
7  Ohio,  354;  2  liar.  (Penn.  St.)  83;  16  Mass.  102;  1  Rich. 

J.  L.  Thompson,  with  whom  was  Alex.  White,  contra. 
1.   The  civil  jurisdiction  of  a  justice  of  the   peace   is  an 
extraordinary  power,  and  must   be  conferred    by  statute, 
it    did    not  exist   at  common  law. — Ellis  v.  White, 
25  Ala.  540:  Marshall  v.  Betner,  17  Ala.  836.     A  clause 
of  reference  in  a  statute  em  braces  only  the  general  j  ovr* 
c-rs  ami  provisions   of  the  statute  referred  to,  and  not  its 
special  and  particular  clauses. — Ex  parte  Greene  &  Gra- 
.    29  .Ala.    52:  Stevenson  v.   O'Hara,   27   Ala.    362,; 
hews,    Finley   &   Co.  v.  ;.Sands  &  Co.,  29  Ala.  131 ; 
Dwarris  on   Statutes,    705.     From  these  propositions  it. 
-- ai'iiy  follows,  that  the  charter  of  the  town  of  Cam- 
does  not  make  the   intendant,  ex  officio,  a  justice  of 
the  peace.     -4ny  other  construction  of  the  charter  would 
make  each  member  of  the  common  council,  equally  with. 
intendant,  a  justice  of  the  peace;  and  would  authorize 
■  to  act  in  that  capacity,  not  in  Wilcox,  but  in  Greene 
county.     Moreover,  the  8th  section  of  the  subsequent  act 
to  amend  the  charter  of  Camden,  (Session  Acts  1857-8, 
p.   225,i   which   expressly   confers  on  the   intendant  the  i 
powers  of  a  justice  of  the  peace,  is  a  legislative  construe-  , 


OF  ALABAMA. 


Williamson  &  Mc  Arthur  v.  Wooli'  ct  al. 

tion  of" the  original  charter,  showing  that  it  did  not  con- 
fer that  power. 

2.  The  complaint  does  not  aver,  that  Catlin  was  ;; 
tice  of  the  peace  for  Wilcox  County;  and  if  he  was  m 
fact  a  justice,  by  virtue  of  his  election  as  intendant,  there 
is  no  statute  which  required  or  authorized  him  to  give 
bond.  The  provisions  of  the  Code  do  not  apply  to  the 
case,   because  his  term   of  office,   mode  of '-election; 

are  entirely  different  from  those  of  justices  of  the  peace 
under  the  Code,  and  are  governed  by  a  special  statute 
which  was  passed  before  the  adoption  of  the  Code. 

3.  All  the  specified  grounds  of  demurrer  arc  insisted 
on. 

R.  W.  WALKER,  J.— [March  9,1861.]— We  do  not 
deem  it  necessary  to  determine,  whether  by  the  act  "tp 
incorporate  the  town  of  Camden,  in  Wilcox  county,-' 
<  Acts  1841,  p.  54,)  the  intendant  of  the  town  is  m 
ex  officio,  a  justice  of  the  peace.  On  that  point,  the  law- 
may  be  conceded  to  be  as  the  appellees  contend  ;  and  yet 
it  would  be  of  no  avail  to  them  in  this  suit. 

It  is  not  always  easy  to  determine  what  is  necessary  to 
constitute  an  officer  de  facto.     The  general   definition  is, 
that  he  is  one  who  exercises  the  duties  of  an  office,  under 
color  of  an  appointment  or  electiorJBb  that  office;  ihi 
Lord  Elleuborough,  in   the  leading  case   on  the  subject, 
says,  that  an  officer  de  facto  "is  one   who  has  the  reputa- 
tion of  being  the  officer  he  assumes  to  be,  and  yet  is  not 
a  good  othcer  in  point  of  law." — The    King  v.  The   I 
poration  of  Bedford  Level,  r>  Bast,  866,     It  is  very  clear, 
that  the  4th  section  of  the  act  to  incorporate  the  town  of 
Camden,  when  taken  in  connection  with  the  art  to  which 
it  refers,  constitutes  at  least  a  valid  foundation  for  a 
fide  claim  by  the  intendant  of  the   town,  to  be 
justice  of  the  poace;  and  if,  ou  the   faith  of  his  i 

as  intendant,  he  proceeds  to  perform  the  duties  of  ju 
of  the  peace,  he  would  not  be  considered  a  ha  rper 

without  claim  or  right.      If  not  a  mere  Usurper,  be  v. 
be  at  least  an  offi  .  —  People  v.  < 


2        SUPREME  COURT 

Williamson  &  McArthur  v.  Woolf  et  nl. 

816;  Jones  v.  i>cbee,  9  Mass.  281.  It  follows,  that  if  the 
principal  obligor  in  the  bond  was  elected  intendant  of  the 

town  of  Camden,  and,  on  the  authority  of  that  election, 
assumed  to  act,  and  did  act  as  a  justice  of  the  peace,  lie 
became  at  least  a  justice  de  facto,  if  not  dejure.  This- 
being  so,  a  bond  executed  by  him,  and  conditioned  for  his 
faithful  discharge  of  the  duties  of  justice,  will  be  upheld 
as  a  valid  obligation;  and  those  who  have  voluntarily 
bound  themselves  as  his  sureties,  cannot  absolve  them- 
selves from  liability  by  alleging  that  he  was  no  justice. — 
Sprowl  v.  Lawrence,  33  Ala.  688,  and  authorities  cited. 

[2.]  The  doctrine  of  estoppel  has  sometimes  been  as- 
sailed, as  tending  to  defeat  justice  by  excluding  truth. 
But  certainly  no  rule  of  the  common  law  is  better  sup- 
ported by  reason  and  sound  policy,  than  that  which  de- 
clares, that  when  a  man  solemnly  admits  a  fact,  and  the 
admission  is  acted  upon,  he  shall  not  be  heard  to  gainsay 
it,  with  a  view  of  escaping  from  liability.  The  bond  in. 
this  case  expressly  declares,  that  Catlin  "has  been  duly 
elected  intendant  of  the  town  of  Camden  in  said  county, 
and  is  thereby  made  ex  officio  justice  of  the  peace;  "  and 
the  complaint  avers,  that  Catlin  performed  the  duties  of 
the  office  of  justice,  and  that  on  the  faith  and  credit  of 
thisbond  he  received  "  much  patronage  and  business  as  a 
justice  of  the  pcace^  By  signing  his  bond,  the  defendants 
acknowledged  him  to  be  a  justice  of  the  peace,  recom- 
mended him  as  such  to  the  public,  and  agreed  to  be  liable 
if  he  did  not  well  and  truly  perform  the  duties  of  the 
office.  They  at  least,  whatever  might  be  the  case  with 
others,  will  not  be  heard  to  say  that,  although  they  signed 
his  bond,  and  there!)}-  induced  others  to  place  claims  in 
his  hand<,  still  he  was  not  in  fact  a  justice  of  the  peace. 
On  that  point  "their  mouths  are  shut." 

[3.]  Even  if  it  be  true,  that  there  was  no  law,  re- 
quiring the  intendant  of  the  town  of  Camden  to  give 
bond;  that  would  not  affect  the  validity  of  the  instru- 
ment, as  a  common-law  obligation. — Sprowl  v.  Lawrence, 
33  Ala.  (392;  Alston  v.  Alston,  34  Ala.  24-5,  and  authori- 
ties cited;  Stephens  v.  Crawford,  1  Kelly,  582.     The  com- 


OF  ALABAMA.  303 

Hopkinson  v.  Shelton. 


plaint  shows  a  sufficient  consideration  for  the  bond. — 
34  Ala.  24. 

[4.]  The  complaint  contained  but  a  single  count,  as- 
signing several  breaches.  In  such  a  case,  the  insufficiency 
of  one  of  the  breaches  assigned  is  not  a  ground  of  de- 
murrer to  the  entire  complaint.  Hence,  we  need  not  in- 
•quire,  whether  the  second  breach  was  good. — Governor  v. 
Wiley,  11  Ala.  172  ;  Wilson  v.  Cantrell,  19  Ala.  642. 

The  court  erred  in  sustaining  the  demurrer.  The 
judgment  is,  therefore,  reversed,  and  cause  remanded. 


HOPKINSON  vs.  SHELTON. 

[trover  against  shkkiff.] 

1.  Requisites  qf  plea. — It  is  no  objection  to  a  special  pica,  under  our 
system  of  pleading,  that  it  presents  matter  which  is  available  un- 
der the  general  issue,  which  is  also  pleade  L 

2.  Plea  of  former  recovery. — A  plea  of  former  recovery  must  show 
that  the  cause  of  action  in  the  two  suits  is  the  same. 

3.  Same;  conclusiveness  qf  judgment  as  bar. — The  reoovery  of  a  judg- 
ment against  a  sheriff  and  liis  sureties,  in  an  action  on  hi*  official 
bond,  by  two  joint  owners  of  a  chattel,  for  his  Wrongful  acts  in  Boil- 
ing the  entire  interest  in  the  chattel  under  execution  against  fine 
of  the  joint  owners,  and  in  making  the  sale  at  a  place  not  author- 
ized >  v  law,  is  a  bur  to  a  subsequent  action  of  trover  against  him, 
by  the  joint  owner  who  was  not  a  party  to  the  process,  lor  the  con- 
version arising  from  the  wrongful  sale  of  the  entire  interest ;  and 
(he  conclusiveness  of  the  bar  is  not  affected  by  the  fact,  that  only 
nominal  damages  were  recovered  in  that  action  ;  nor  by  the  further 
fact,  that  the  action  itself  was  not  strictly  maintainable. 

Appeal  from  the  City  Court  of  Mohile. 
Tried  before  the  Hon.  ALEX.  MoKlNSTRY. 

Tnis  action    was  broughl  by  C.  B.  Hopkinson,  against 
Jame;T.  Shelton,  to  recover  damages  ior  the  conversion 


304 SUPREME  COURT  . 

Hopkinson  v,  Shetton. 

of  certain    cattle,    which    tlie    defendant,   as    sheriff   of 
said     county,    had     seized     and    sold    under    execution 
against  one  F.  B.  Sheppard.     The  defendant  pleaded,  1st, 
the  general  issue;  2d,  justification   under  the  execution 
against  Sheppard,  averring  that  the  cattle  were  the  prop- 
erty of  said  Sheppard,  and  were  liable  to  sale  under  the 
execution  ;  and,  3d,  a  special  plea  in  the  following  words: 
"3.  And  for  a  further   plea,    defendant   says,    that    said 
plaiirtiff  ought  not  further  to  have  or  maintain  his  said 
action  against  him,  because  he   says,  that  the  said  plain- 
tiff and    F.  13.  Sheppard  instituted  a  suit,  in  their  joint 
names,  against  this  defendant,  as  sheriff,  and  his  sureties 
on    his  official    bond,  on    the    same  day   this    suit    was 
brought,  to  recover  damages  for  the  defendant's  selling 
the  same  cattle,  for  the   conversion  of  which  this  suit  is  ' 
brought,  under  an    execution,  issued  from  the  city  court 
of  Mobile,  in   favor  of  one  W.  R.   Smith,  against  said 
Sheppard:   and  that  at  the  present  term  of  this  court,  to. 
wit,  on  the  28th  March  instant,  said  suit  was  tried,  and  a 
recovery  was    had  against    this    defendant    for  the   sale; 
thereof,  and  damages  assessed  against  this  defendant  and'- 
his  sureties,  in  favor  of  said  pjaintiff  and  said  Sheppard; 
and  he  avers,  that  this  recovery  was  for  the  sale  of  the 
same    cattle,  for   the   conversion  of  which   this   suit    is 
brought;  which  said  recovery  still  remains  of  record,  in  full 
«forcc;  and   he  pleads   this    recovery    in    bar  of  the   fur- 
ther prosecution  of  this  suit,   and  prays  judgment,"  &c. 
The  plaintiff  took  issue  on  the  first   plea,  and  demurred, 
to  the  others — 1st,  because  said   second   and  third  pleas 
are  repugnant;  2d,  because  said  second  plea  amounts  to 
the  general  issue,  as  pleaded  in  the  first  plea;  3d,  because, 
as  to  the  third  plea,  it  does  not  set  out  the  record  with 
sufficient  certainty;  4th,  because  said  third  plea  does  not 
show  that  the  suit,  on  which  the  recovery  therein  plead- 
ed was  had,  was" between  the  same  parties;  5th,  because 
it  does  not  show  that  the  cause  of  action  for  which  this 
suit  is  brought,  was,  or  could  have  been,  tried  in  said  for- 
mer suit;  6th,  because  it  does  not  show  that  the  cause  of 
action  in  said  former  suit  was  the  same  as  that  on  which 


OF  ALABAMA.  305 


Hopkinson  v.  Shelton. 


a  recovery  is  sought  in  this  action;  7th,  because  it  does 
not  show  that  the  recovery  sought  tn  this  action  was,  or 
could  have  been,  had  in  said  former  suit;  8th,  because  it 
does  not  show  that  the  merits  of  this  action  were,  or 
could  have  been,  tried  in  said  former  action  ;  9th,  because 
it  does  not  show  that  the  judgment  in  the  former  suit 
has  been  satisfied;  and,  10th,  because  it  does  not  show 
what  were  the  issues  decided  in  the  said  former  action." 
The  court  overruled  the  demurrer,  and  the  plaintiff  then 
replied  nut tiel  repord;  and  it  was  agreed,  that  any  other 
appropriate  special  replication  should  be  considered  as 
filed,  and  that  any  special  matter  might  be  given  in  ev- 
idence. * 

On  the  trial,  as  the  bill  of  exceptions  shows,  the  plain- 
tiff proved  the  joint  ownership  of  the  cattle  by  himself 
and  F.  B.  Sheppard,  the  levy  of  an  execution  on  them  by 
the  defendant,  as  sheriff,  against  said  Sheppard  individ- 
ually, and  the  sale  of  them  under  said  execution,  on  the 
25th  October,  1858,  as  the  sole  and  separate  property  of 
Sheppard.  The  defendant  then  read  in  evidence  the 
record  of  the  former  suit  hroughtby  the  plaintiff  and  said 
Sheppard  jointly,  against  the  defendant  and  the  sureties 
on  his  official  bond,  together  with  the  bill  of  exceptions 
reserved  by  the  plaint  ills  in  that  case,  and  the  decision  of 
the  supreme  court  thereon  rendered;  "and  it  was  admit- 
ted, that  the  same  cattle  constituted  the  subject-matter  of 
botn  suits."  It  was  agreed,  also,  that  the  decision  of  the 
supreme  court  in  the  former  case  might  be  read  from  the 
printed  report;  ( 84  Ala.  652-59, )  as  if  incorporated  in 
the  bill  of  exceptions  in  this  case. 

"This  hr'mg  all  the  evidence  in  the  cause,"  the  court 
charged  the  jury,  at  the  instance  of  the  defendant— "1st, 
that  if  they  believe  the  cattle  sued  for  are  the  same  cattle 
for  the  sale  of  which  the  suit  of  Hopkinson  &  Sheppard 
v.  Shelton  1 1  <>f.  was  brought,  the  record  of  which  suit  was 
read  in  evidence,  then  the  plaintiff  cannot  recover;  2d, 
that  if  the  cattle  belonged  to  Hopkinson  and  Sheppard 
as  partners,  the  suit  of  Hopkinson  &  Sheppard  9.  Shelton 
d<ii.  is  a  bar  to  this  suit."     The  plaintiff  excepted  to  these 


30G  SUPREME  COURT 


Hopkinsou  v.  Shelton. 


charges,  and  then  requested  the  court  to  instruct  the  jury 
— "1st.  thai  the  verdict  and  judgment  in  the  suit  of  Hop- 
kinsou &  Sheppard  v.  Shelton  elal.  is  conclusive  evidence, 

in  this  suit,  of  the  plaintiff's  interest  in  the  cattle;  2d, 
that  it  Hopkinsou  and  Sheppard  were  joint  owners  of 
the  cattle,  and  the  defendant,  as  sheriff,  sold  said  cattle 
as  the  sole  and  exclusive  property  of  Sheppard,  under  an 
execution  against  him  individually,  and  Sheppard  &  Hop- 
kinsou recovered  only  nominal  damages  in  the  former  ac- 
tion, when,  by  reason  of  the  misjoinder  of  plaintiffs,  they 
were  by  law  entitled  to  none, — then  the  recovery  in  that 
suit  is  no  bar  to  this  suit;  3d,  fhat  if  Hopkinsou  &  Shep- 
pard owned  the  cattle  jointly,  and  the  defendant,  as  sher- 
iff, sold  the  entire  property  under  execution  against 
Sheppard  individually,  they  must  find  for  the  plaintiff; 
4th,  that  the  verdict  rnid  judgment  in  the  former  suit  is 
no  bar  to  the  plaintiff's  recovery  in  this  action  ;  5th,  that 
if  the  evidence  in  this  suit  would  not  have  sustained  the 
action  in  the  former  suit,  then  the  judgment  in  that  suit 
is  not  a  bar  in  this  ;  6th,  that  the  plaintiff  in  this  action 
could  not  have  recovered  in  the  former  suit  the  demand 
claimed  in  this,  and,  therefore,  was  entitled  to  recover  in 
this  suit  for  the  value  of  his  interest  in  the  cattle; 
and,  7th,  that  the  jury  must  find  for  the  plaintiff,  under 
the  facts  of  this  case."  The  court  refused  each  of  these 
charges,  and  the  plaiutilf  excepted  to  their  refusal. 

The  overruling  of  the  demurrer  to  the  second  anil  third 
pleas,  the  charge.- given  to  the  jury,  and  the  refusal  of  the 
several  charges  asked,  are  now  assigned  as  error. 

II.  K.  J>;;t  MMOND,  for  appellant. 
Daruan  cV  Taylor,  conl  • 

A.  J.  WALKi;;:,  C.  J.— [March  22d,  1861.]— Under 
our  system  of  pleading,  which  allows  the  filing  of  a  plu- 
rality of  pleas,  it  is  no  objection,  that  a  special  plea  pre- 
sents matter  of  defense  available  under  the  general 
issue,  which  is  also  pleaded. —  Dunham  v.  Riddle,  2  St.  & 
P.  402;  Code,  §  2237;  Pamphlet  Acts  of  1853-54,  p.  60. 
The  refusal  of  this  court  to  reverse,  on  accouut  of  the 


OF  ALABAMA.  a07 


Hopkinson  v.  Sholton. 


erroneous  sustaining  of  a  demurrer  to  a  plea,  where  the 
general  issue  was  pleaded,  and  the  defense  might  have 
been  made  under  it,  is  put,  not  upon  (lie  ground  that  the 
special  plea  was  objectionable,  but  that  no  injury  resulted 
from  the  erroneous  action  of  the  court. — Rogers  v.  Bra- 
zeale,  34  Ala.  512.  There  is  a  common-law  rule,  "-that 
where  a  plea  amounts  to  the  general  issue,  it  should  be  so 
pleaded;"  but  it  is  probable  that  the  enforcement  of  that 
rule  was  discretionary  with  the  court. — Stephens  on 
Fl.  419-422,  eh.  2,  §  6.  It  was  no  valid  objection  to  the 
second  plea,  that  it  amounted  to  the  general  issue. 

[2.]  The  third  plea,  setting  up  a  former  recovery,  does 
not  show  that  the  cause  of  action  in  the  two  suits  was 
the  same.  The  cause  of  action  in  this  case,  is  the  con- 
version of  the  cattle  mentioned.  The  cause  of  action, 
alleged  to  have  been  the  basis  of  the  former  recovery,  is 
the  sale  of  the  same  cattle  by  the  defendant  as  sheriff. 
It  is  not  averred,  that  the  conversion,  for  which  this  suit 
wa-  brought,  was  identical  with  the  sale,  for  which  the 
other  suit  was  brought.  There  may  have  been  an  actiona- 
ble conversion  altogether  distinct  from  the  sale.  The 
court  erred  in  overruling  the  demurrer  to  this  plea. 

[:>.]  The  main  question  before  us  is,  whether  the  re- 
covery of  nominal  d;i  in  the  case  of  Hopkinson  and 
Sheppard  v.  Shelton,  (the  decision  of  which  in  this  court 
ported,  under  the  title  of  Sheppard  v.  Shelton,  in 
84  Ala.  p.  652,)  18  a  bar  to  this  suit,  when  it  is  shown  that 
the  conversion  i  f  attle  for  which  this  suit  is  brought  was 
ted  by  the  levy  upon  the  same  by  the  defendant,  as 
sheriff,  under  fieri  facial  against  Shcppard  alone,  and  the 
subsequent  sale  of  the  same  under  the  execution;  and 
that  such  sale  was  tin-  sale  for  the  making  of  which  the 
former  suit  was  brought  by  the  plaintiff  and  Sheppard, 
they  being  joint  owners  of  the  cattle.  To  determine  this 
question,  it  is  ne<  essary  to  ascertain  whaf  ir-  the 
cause  of  a  tioi  in  this  -nit.  The  sheriff,  having  an  < 
qution  against  Sheppard  alone,  had  authority  to  lev 

lot  property  ■>!'  the  defendant 
in   execution  and  the    plaintiff  in  this   ease,  ami  to  hold 


$ 

308 SUPREME  COURT 

Hopkinson  v.  Shelton. 

possession  of  the  same  until  the  sale. — Andrews  v.  Keith, 
34  Ala.  722;  Mo^re  v.  Sample,  3  Ala.  311);  Winston  v. 
Ewhig,  1  Ala.  120.  The  cause  of  action  in  this  case, 
therefore,  is  not  a  conversion  produced  by  the  levy,  taking 
and  retaining  of  the  property  up  to  the  sale.  The  sheriff's 
conduct  was  legal,  up  to  the  time  of  sale.  A  sale  of  the 
entire  property,  under  an  execution  against  one  of  the 
joint  owners,  would  render  the  sheriff  a  trespasser  as  to 
the  joint  owner  who  was  not  a  defendant  in  the  execu- 
tion ;  and  this  is  the  cause  of  action,  which  would  accrue 
to  the  plaintiff,  upon  the  facts  stated  in  the  question 
above  propounded. — Sheppard  v.  Shelton,  34  Ala.  652; 
Smyth  v.  Tankersley,  20  Ala.  212. 

If  the  wrongful  sale  of  the  property  was  the  cause  of 
action  in  the  former  suit,  and  a  recovery  was  thereupon 
had,  it  is  a  bar  to  this  suit.  It  can  make  no  difference, 
that  the  form  of  action  was  differeut. — Starkie  on  Ev., 
part  2,  p.  198;  Tarleton  k  Pollard  v.  Johnson,  25  Ala.  300; 
Langdon  v.  Railord,  20  Ala.  532.  Nor  does  it  affect  the 
question,  that,  in  strictness  of  law,  the  plaintiff 's  right 
could  not  have  been  properly  adjudicated  in  the  former 
action,  if  it  was  in  fact  set  up  and  passed  upon,  in  a  court 
of  competent  jurisdiction,  at  the  plaintiff's  instance. 
Tarleton  k  Pollard  v.  Johnson,  supra.  Nor  does  it  make 
the  former  suit  less  effective  as  a  bar,  that  in  it  the  court, 
by  an  erroneous  ruling,  diminished  the  plaintiff's  recovery 
down  to  merely  nominal  damages. — Smith  v.  Whiting, 
11  Mass.  445;  Planter  v.  Best,  11  Johns.  R.  530;  Philips 
v.  Berick,  lb'  Johns.  R.  136;  Brockway  v.  Kinney, 
2  ib.  210. 

The  cause  of  action  in  the  former  suit  was  the  sale  of 
the  entire  property  in  the  cattle,  by  virtue  of  process 
against  one  of  the  owners,  and  at  a  place  not  authorized 
by  law.  The  charge  of  the  court  authorized  a  finding  by 
the  jury  of  the  damage  resulting  from  such  sale,  but  re- 
quired a  deduction  from  the  damage  of  so  much  of  the 
proceeds  of  sale  as  was  paid  over  on  the  execution  by 
the  sheriff;  and  instructed  the  jury,  that,  if  the  property 
sold  for  as  much  as  it  would  have  sold  for  at  a  place  pre- 


OF  ALABAMA.  309 


Hopkinson  v.  Shelton. 


scribed  by  law,  ami  the  proceeds  of  the  sale  were  all  paid 
over  on  the  execution,  then  they  must  find  nominal 
damages  for  the  plaintiff.  The  jury  found  nominal 
damages.  The  court  also  refused  to  separate  Hopkinson's 
interest  from,  that  of  the  defendant  in  execution,  and 
allow  a  recovery  of  his  damages.  We  think,  that  the 
plaintiffs  damages,  resulting  from  the  sale,  alleged  to 
have  been  wrongful  for  the  two  reasons — that  the  entire 
property  was  sold  under  an  execution  against  one  owner, 
and  that  the  sale  was  at  a  wrong  place, — were  considered 
and  adjudicated  ;  and  that,  under  the  charge,  those  dam- 
ages were  reduced  to  a  nominal  amount,  because  the 
propei ty  sold  for  its  value,  and  the  proceeds  of  the  sale 
wore  paid  over  on  the  execution.  The  plaintiff  cannot 
again  have  his  claim  for  damages  on  account  of  the 
wrongful  sale  adjudicated;  and  it  this  suit  be  for  the  same 
sale,  it  is  barred  by  the  former  judgment.  And  upon  the 
principles  stated  above,  this  case  is  «ot  relieved  from  the 
bar,  because  the  form  of  action  in  the  former  suit  was 
different :  nor  because  the  action  was  not,  in  strictness  of 
law,  maintainable;  nor  because  the  court,  in  the  former 
erroneously  ruled,  that  the  plaintiff's  damages  were 
subject  to  reduction  to  a  nominal  sum.  # 

We    i       \   adopted  what"  we  conceive  to  be  the  ]>rima- 

trnction  of  the  record  in  the  fornier  suit.    Wedo 

not   consider,  for  we  do  not   think  it   necessary,  whether 

parol  proof  would  be  admissible  to  show  that,  in  fact,  the 

subject-matter  of  this  suit  was  not  adjudicated. 

We  do  not  deem  i:  iry  to  decide  any  other  ques- 

tion in  tl 

Judgment  reversed,  and  cause  remanded. 


-310  SUPREME  COURT 


Beene's  Adm'r  v.  Phillips,  Groldeby  &  Sieving. 


BEENE^S  ADM'R  vs.  PHILLIPS,  GOLDSBY  & 
B  LEVINS. 

[CONTEST  EETWEfcX  ruEnlTGK  ASD  ADMlXlsTfcAtOft   OF    INSOLVENT   EST.STE.] 

I.  What  constitutes  sufficient  filing  of  claim.— A  claim  against  an  insol- 
vent estate,  or  the  affidavit  verifying  it,  must  be  regarded  as  filed^ 
within  the  meaning  of  the  statute,  (Code,  \  1847,)  when  it  is  de- 
livered to  the  probate  judge,  or  to  his  acting  clerk,  in  his  office,  to 
be  placed  and  kept  on  file ;  but  merely  placing  it  in  the  office,  not 
with  the  proper  file  of  papers  belonging  to  the  estate,  and  without 
bringing  it  to  the  notice  of  the  judge  or  his  clerk,  is  not  a  sufficient 

filing. 

« 

Appeal  from  the  Probate  Court  of  Dallas. 
• 

Ix  the  matter  of  the  estate  of  Benjamin  Y.  Beene,  de- 
ceased, which  was  declared  insolvent  on  the  12th  April, 
1858;  and  against  which  the  appellees  filed  a  claim,  on 
the  22d  November,  l8o8,  The  administrator  filed  a 
written  objection  to  the  allowance  of  this  claim,  "on  the 
ground  that  the  same  had  not  been  verified  in  the  time 
and  manner  required  by  law;"  and  an  issue  was  formed 
on  this  objection.  On  the  trial,  as  appears  from  the  bill 
of  exceptions,  the  plaintiffs  produced  an  affidavit  of  the 
justice  and  non-payment  of  their  claim,  made  before  a 
justice  of  the  peace,  on  the  16th  December,  1858;  and 
proved  by  one  Roberts,  who  was  the  acting  clerk  in  the 
office  of  the  probate  jud,ge,  "that  some  time  after  the 
time  for  filing  claims  against  said  estate  had  expired,  to- 
wit,  after  the  lapse  of  nine  months  from  the  declaration 
of  insolvency,  plaintiffs'  attorney  came  into  the  office  of 
the  probate  judge,  and  reipicsted  witness  to. look  and  sec 
whether  there  was  any  affidavit  to  said  claim ;  that  they 
both  looked  in  a  box,  in  which  all  claims  against  insolvent 
estates  were  kept,  and  said  attorney  there  found  the  affi- 
davit above  mentioned,  but  not  in  the  file  of  papers  be- 
longing to  said  estate ;  and  that  lie  (witness)  had  never 


OF  ALABAMA.  311 


Wood  v.  Barker. 


before  seen  said  affidavit.  Said  affidavit  was  not  marked 
filed :  nor  was  there  any  evidence  that  tho  attention  of  the 
probate  judge,  or  of  any  one  acting  for  him,  had  ever 
been  called  to  it;  nor  was  any  other  evidence  offered  in 
relation  to  the  riling  of  said  affidavit,  or  the  verification 
of  said  claim.  This  being  all  the  evidence,  the  court 
overruled  the  objection  of  the  administrator,  and  allowed 
said  claini;  to  which  said  administrator  excepted."  and 
which  he  now  assigns  as  error. 

White  &  Portis,  for  appellant. 

Jas.  Q.  Smith,  and  Jno.  T.  Morgan,  contra. 

STONE,  J.— [Feb.  26,  1861.]— A  claim  and  its  verifi- 
cation, delivered  to'the  judge  of  probate,  or  to  his  acting 
clerk,  in  his  office,  to  be  placed  and  kept  on  tile,  must  be 
regarded  as  "filed"  within  the  meaning  of  section  1847 
of  the  Code.  Merely  placing  such  paper  in  the  office,  not 
with  the  proper  file  of  papers  belonging  to  the  particular 
estate,  and  without  bringing  such  paper  to  the  notice  of 
the  judge  or  his  clerk,  would  not  be  a  filing  within  the 
spirit  of  the  statute. 

The  evidence  before  the  probate  court,  without  more, 
docs  not  prove  that  the  affidavit  verifying  the  claim  in 
this  ease,  was  //Win  the  office  of  the  probate  court  withiu 
the  time  allowed  by  law.  • 

Reversed  and  remanded. 


Wool'  -UKKK. 

[ATTiriS    OS    ATT.W'IMI  \T    BOND,     FOR    DA  Hi 

1.  Mdl  -.—  In  nn  action  on  an  rut  ichment bond, 

if  the  attachment  waa  no!  vexatiovu  endant  i n 

KjJ    tint  tl  mated  by 


3T2 SUPREME  COURT 

Wood  v.  Barker. 

, ■_ , : ♦        

malice  towards  a  third  person,  who,  though  a  joint  obligor  with  the  > 
defendant  in  attachment,  was  not  a  party  to  the  process,  affords 
no  ground  for  the  recovery  of  vindictive  damages. 
2.  Admissibility  of  declarations,"  as  pari  of  res  gestce. — The  declarations 
of  the  piaintiffin  attachment,  to  his  attorney,  as  to  his  reasons  for 
suing  out  the  process,  made  at  the  time  of  suing  out  the  writ, 
are  admissible  evidence,  in  an  action  on  the  attachment  bond,  as  a 
part  of  the  ree  aestcc. 

to   evidence.  —  A  general  objection  to  evidence,  a 
part  of  which  is  admissible,  may  be  overruled  entirely., 

Appeal  from  the  Circuit  Court  of  Dallas. 
Tried  before  the  Hon.  Nat.  Cook. 

This  action   was   brought  by  William  Wood,   against 
Stephen  B.  Barker  and  others,  the  sureties  of  said  Bar- 
ker; and  was  founded  on  an  attachment  bond,  executed 
by  the  defendants,  in  a  suit  previously   brought  by  said 
Barker  against  the  piaintiffin  this  suit.     The  attachment 
bond  was   conditioned  as   the   statute  prescribes.     The 
breaches  alleged  in  the  complaint  were — 1st,  that  .the  at- 
tachment was  not  prosecuted  to  effect,  but  was  dismissed 
b}r  the  plaintiff  therein  ;  2d,  that   said   attachment  was 
wrongfully  sued  out;  and,  3d,  that  said  attachment  was 
vexatiously   sued   out.     Issue  was  joined,   as  the  bill  of 
exceptions  states,  "on  each  breach  of  the  plaintiff's  com- 
plaint."    On  the  trial,  after  the  plaintiff  had  proved  the 
issue  of  the  attachment,  its  levy  by   service  of  garnish- 
ment, and   the  dismissal  of  the  attachment  suit,  in  vaca- 
tion, before  the  commencement  of  this  suit, — "he  offered 
one  Gibson  as  a  witness,   who  was  a  joint  obligor  with 
Lim  on  the  note  which  was  the  foundation  of  the  attach- 
ment-suit, and   offered  to  prove  by  him,  that  said  Barker 
told  him  (witness),   after  said   attachment  was  sued  out, 
that  he  sued  out  said   attachment  to  vex  and   harass  him 
(witness),  and  to  injure  him  in  his  standing  in  the   com- 
munity,  because  he  had   refused  to  go  security  for  said 
Barker  on  a  replevy  bond.     The  court  refused  to  allow 
the  witness  to  prove  said  Barker's  declarations  to  him, 
and  the  plaintiff  excepted."     The  defendant  introduced 
as  a  witness  one  of  his  attorneys  in  the  attachment  suit, 


OF  ALABAMA.  313 


Wood  v.  Barker. 


•"by  whom  he  proposed  to  prove  his  reasons  for  suing  out 
said  attachment,  as  stated  at  the  time  to  said  attorney,  and 
the  reason  why  the  attachment  suit  was  dismissed.  The 
plaintiff  objected  to  this  evidence,  but  the  court  over- 
ruled the  objection.  The  witness  testified,  that  the  de- 
fendant's reason  for  suing  out  said  attachment,  as  stated 
to  him  at  the  time,  was,  that  the  plaintiff  had  deceived 
him  as  to  his  ability  to  pay,  and  he  was  afraid  that  Gibson 
alone  was  not  able  to  pay  the  debt;  and  that  the  attach- 
ment suit  was  dismissed,  by  his  advice,  because  the  affida- 
vit on  which  it  was  founded  was  defective."  The  plaintiff 
objected  to  this  evidence,  and  reserved  an  exception  to 
the  overruling  of  his  objection.  The  several  rulings  of 
the  court  on  the  evidence,  to  which  exceptions  were  re- 
served, are  now  assigned  as  error. 

Geo.  W.  Gayle,  for  appellant. 
Tiios.  H.  Lewis,  contra. 

R.  W.  WALKER,  J.— [.July  24,  I860.]— If  the  attach- 
ment was  not  vexatious  as  against  the  defendant  himself 
the  fact  that  the  attaching  creditor  was  actuated  by  malice 
against  some  third  person,  not  a  part}7  to  the  .process, 
affords  no  ground  for  the  recovery  of  vindictive  damages 
in  this  suit. 

[2-3.]  A  part  of  the  testimony  of  the  witness  Williams 
consisted  of  the  declarations  which  the  defendant  made 
at  the  time  the  attachment  was  issued,  as  to  his  reasons 
for  having  it  issued.  These  declarations  were  admissible 
as  part  of  the  res  gestae. — Pitts  v.  Burroughs,  6  Ala.  735-6,. 
and  cases  cited;  Dearing  v.  Moore,  26  Ala.  590;  Sanford: 
v.  Howard,  29  Ala.  695.  The  exception  taken  was  to  the- 
admission  of  the  whole  of  the  witness'  evidence;  and,  as 
part  of  it  was  admissible,  this  court  will  not  reverse,  even 
if  other  portions  of  it  were  illegal.  On  that  point,  how- 
ever, it  is  not  necessary  for  us  to  express  an  opinion. 

Judgment  affirmed. 


21 


314  SUPREME  COURT 

Kannady  v.  La'ubert. 


KANNADY  vs.  LAMBERT. 

[action  on  promissory  note,  by  endorsee  against  maker.] 

1.  Error  without  injury  in  sustaining  demurrer  to  special  plea. — The 
sustaining  of  a  demurrer  to  a  special  plea,  if  erroneous,  is  not 
available  to  the  defendant,  when  the  record  shows  that  he  had  the 
full  benefit  of  the  same  defense  under  the  general  issue. 

2.  What  is  available  under  general  issue. — In  an  action  on  a  note  given 
for  the  purchase-money  of  land,  a  promise,  by  the  vendor  to  cancel 
and  destroy  the  note,  in  consideration  of  the  fact  that  the  land 
was  subject  to  overflow,  when  he  had  represented  that  it  was  not, 
is  available  as  a  defense  under  the  plea  of  the  general  issue ;  but 
the  vendor's  misrepresentations  as  to  any  material  matter,  which 
constituted  an  inducement  to  the  purchase,  and  on  which  the 
purchaser  relied,  is  only  available  under  a  special  plea  of  set-off, 
by  virtue  of  section  22-10  of  the  Code. 

3.  Pica  of  fraud. — In  an  "action  on  a  note  given  for  the  purchase- 
money  of  land,  a  special  plea,  averring  the  vendor's  misrepresenta- 
tion as  to  a  material  matter,  and  consequent  injury  to  the  purchasers 
but  containing' no  averment  that  such  misrepresentation  misled 
the  purchaser,  or  constituted  an  inducement  to  the  purchase,  or 
was  relied  on  by  him,  tails  to  make  out  a  case  of  fraud. 

Appeal  from  the  Circuit  Court  of  Coosa. 
Tried  before  the  Hon.  Porter  King. 

This  action  was  brought  by  John  M.  Lambert,  against 
A.  T.  Kannady;  and  was  founded  on  the  defendant's 
promissory  note,  of  which  the  following  is  a  copy: 

"  $1100.  On  or  before  the  1st  January,  1858, 1  promise 
to  pay  Samuel  Lambert,  or  bearer,  the  sum  of  eleven 
hundred  dollars;  to  be  paid  in  cotton,  at  eight  cents  per 
pound  the  crop  round,  on  the  plantation,  or  at  the  near- 
est convenient  e:in,  for  value  received  of  him  this  15th 
November,  1855;  being  for  land — south  half  of  section 
twelve,  township  twenty-four,  range  eighteen;  with  in- 
terest from  1st  January,  1856." 

"A.  T.  Kannady." 


!2 
■  ■ 


OF  ALABAMA.  315 

• 

Kannady  v.  Lambert. 


The  defendant  pleaded — 1st,  that  the  plaintiff  was  not 
the  party  really  interested  in  the  suit;  2d,  the  statute  of 
limitations  of  six  years;  3d.  the  general  issue;  and,  4th, 
a  special  plea  in  these  words:  "Defendant  denies  each 
and  every  allegation  in  said  declaration  contained,  and 
avers,  that  said  note  was  given  for  the  purchase-moi; 
the  south  half  of  section  twelve,  township  twenty  -four, 
range  eighteen;  that  Samuel  Lambert,  the  payee  of  said 
note,  represented  to  defendant,  at  the  time  of  said  pur- 
chase, that  no  part  of  said  lands  overflowed,' when  in  fact 
a  great  portion  of  said  lands  did  overflow,  and  said  Lam- 
bert well  knew  that  fact;  and  that  said  defendant  was 
thereby  greatly  damaged,  to  more  than  the  amount  of 
said  note.  And  defendant  avers,  that  afterwards,"  &c, 
"before  the  transfer  of  said  note,  defendant  offered  to 
rescind  said  contract,  and  to  give  up  said  land  to  Samuel 
Lambert;  and  that  said  Samuel  Lambert  declined  and 
refused  to  rescind  said  contract,  butfproraised  and  agreed 
with  said  defendant,  in  consideration  of  the  fact  that  said 
land  did  overflow,  and  of  his  false  representations  as 
aforesaid,  to  allow  him  a  deduction  on  the  purchase- 
money  of  said  land,  amounting  to  the  entire  sum  of  said 
note,  and  further  agreed  to  give  up,  caneel  and  destroy 
said  note."  To  this  special  plea  the  plaintiff  demurred, 
on  the  following  specified  grounds:  "  1st,  because 
plea  docs  not  show  that  said  defendant  was  induced  to 
purchase  on  account  of  said  alleged  false  represei' 
2d,  because  said  plea  purports  to  answer  the  whole  * 
of  action,  and  concludes  to  a  part  only;  3d,  because  if  is 
argumentative;  4th,  because  it  is  double;  and,  oth,  he- 
cause  it  is  repugnant,  and  contains  matter  that  is  sur- 
plusage." The  court  sustained  the  demurrer,  and  tiie 
cause  was  tried  on  issue  joined  on  the  other  pie; 

The  sustaining  of  the  demurrer  to  the  4th  plea  is   here 
error,     together   with     the    rulings     of   the 
court  on  the  evidence,  and  in  the  charges  to  the  jury. 

L.  E.  Parsons,  for  the  appellant. 
X.  S,  Graham,  contra. 


816  SUPREME  COURT 


Kfinnady  v.  Lambert. 


A.  J.  WALKER,  C.  J.— [July  4,  I860.]— The  fourth 
plea  first  denies  all  the  allegations  <?f  the  complaint.  So 
far  as  this  denial  is  concerned,  there  was  no  prejudice  to 
the  defendant  from  sustaining  the  demurrer  to  the  plea; 
for  it  presented  no  defense  not  available  under  the  general 
issue,  which!  was  also  pleaded.  So,  also,  the  agreement 
to  cancel  and  destroy  the  note,  in  consideration  of  the 
overflow  of  the  land  for  which  the  note  was  given,  and  of 
the  false  representation  as  to  that  matter,  could  have  been 
given  in  evidence  under  the  general  issue;  and  the  plain- 
tiff sustained  no  prejudice  from  the  demurrer  so  far  as 
that  defense  was  concerned. — 1  Chicty  on  PL  478;  Sted- 
ham  v.  Stedham,  32  Ala.  525;  Fail  &  Miles  v.  McArthur, 
31  Ala.  26.  Besides  these  two  matters,  however,  the  plea 
contains  allegations  to  the  effect,  that  the  note  was  given 
for  the  purchase-money  of  a  tract  of  land;  that  the  ven- 
dor represented,  at  #the  time  of  the  purchase,  that  the 
land  was  not  subject  to  overflow;  that  a  great  portion  of 
it  was  subject  to  overflow;  that  the  vendor  knew  that 
fact,  and  that  the  defendant  was  thereby  damaged,  to  an 
extent  beyond  the  amount  of  the  note.  We  have,  in  this 
part  of  the  plea,  the  averment  of  a  misrepresentation  as 
to  a  matter  which  seems  to  have  been  material,  and  of 
injury  to  the  entire  amount  of  the  note,  but  no  averment 
that  the  misrepresentation  misled  the  defendant,  or  that 
it  constituted  an  inducement  to  the  defendant  to  make 
of  purchase,  or  was  relied  upon  by  (lie  de- 
fendant.  On  account  of  the  failure  to  'make  such  aver- 
ment, the  plea  fails  to  make  out  a  ease  of  fraud. — Pritchett 
v.  Munroe,  22  Ala.  501 ;  S.  C,  16  Ala.  785;  Bailey  v.  Jor- 
dan. 32  Ala.  50:  Foster  v.  Grcssett,  29  Ala.  303;  Read  v. 
Walker,  18  Ala.  323;  Cozznis  v.  Whittaker,  3  S.  &  i\ 
322;  2  Cliitty  on  PL  G87,  688,  689.  There  wa 
fore,  no  reversible  error  in  rejecting  any  of  the  three  mat- 
ters of  defense  brought  forward  in  the  plea.  Since  the 
adoption  of  the  Cede,  the  defense  of  fraud  is  available, 
under  the  plea  of  set-off,  to  a  note  given  for  the  purchase- 
money  of  the  land;  but  a  set-off  is  only  available  under 
a  special  plea.     The  defendant,  having  no  special  plea  of 


OF  ALABAMA.  517 


Union  India  Rubber  Company  v.  Mitchell. 


set-oft',  cannot  have  the  advantage  of  this  defense  by 
virtue  of  the  provision  of  the  Code  alluded  to.  The  de- 
fense against  the  vendor's  suit  for  the  purehasc-n: 
on  the  ground  of  fraud,  could  not,  under  our  system,  be 
made  under  the  general  issue  ;  for  it  is  no  defease  at  law, 
as  held  in  numerous  cases,  except  by  virtue  of  the  pro- 
vision of  the  Code  which  allows  a  set-oft  of  any  recipro- 
cal cause  of  action  not  sounding  in  .damages  merely. — 
Kelly's  Heirs  v.  Allen,  34  Ala.  663. 

There  was  no  error  in  the  exclusion  from  the  considera- 
tion of  the  jury  of  the  vendor's  misrepresentation 
there  was  no  issue  upon  which  they  were  admissible. 
The  bill  of  exceptions  does  not  show  that  the  evidence 
offered  by  the  defendant,  as  to  the  payee  of  the  note  be- 
ing about  to  leave  the  country  in  May,  1857,  was  relevant 
to  the  issues  before  the  jury.  Not  being  able  to  pel 
the  relevancy  of  the  evidence,  we  cannot  hold  that  the 
court  erred  in  excluding  it. 

Judgment  affirmed. 


UNION  INDIA  RUBBER  COMPANY  w.  MITCHELL. 

[OARNISBD 

j.  Ex  i*-. — A  bill  of  exceptions,  which  •.-  with- 

out date,  and  which  is  not  shown  by  the  record  to  have  1  ■ 
within  the  time  prescribed  by  I  -.)  will  be 

rejected,  on  motion,  ;  a  forming  do  part  of  tke  record. 
2.    What  irregularities  are  available  to  plaint  .    -The 

•  ■  of  a  set-otr  claimed  by  the  gam 
admitted  by  him  to  be  due  to  th  mt,  or  to  his  ti 

is  not  a  matter  of  which  the  plaintiff  can  compjain  on  error, 
the  record  shows  that  he  contested  the  ti 

:i'l  that  the  jury  found  the  issue  in  favor  of  th<   transfer* 


318  SUPREME  COURT 


Union  India  Kubber  Company  v.  -Mitchell. 


Appeal  from  the  Circuit  Court  of  Dallas, 
ied  before,  the  Hon.  Nat.  Cook. 

The  appellant  in  this  case,  having  recovered  judgment 
against  Jones  &  Co.,  (a  mercantile  firm  in  Selma,  com- 
j  ised  of  Abner  Jones  and  William  Ickes,)  sued  out  pro- 
cess of  garnishment  on  it,  and  summoned  John  T.  Morgan, 
the  administrator  of  William  M.  Murphy,  deceased,  as 
the  debtor  of  said  Jones  &  Co.,  or  either  of  them.  The 
garnishee  answered;  admitting  that  said  Jones  had  pre- 
sented to  him,  as  administrator,  several  claims  against 
his  intestate,  amounting  in  the  aggregate  to  about  $507; 
stating  that  he  had  been  notified  by  Jones,  since  the  pre- 
sentation of  said  claims,  that  they  had  been  transferred 
to  one  John  Mitchell,  as  collateral  security  against  a  note 
1000,  executed  by  said  Jones  as  principal,  and  by 
said  Murphy  and  others  as  sureties;  and  claiming  the 
lit  of  a  set-off  whicn  he  held  against  these  demands, 
Mitchell  having  been  brought  in  on  notice,  an  issue  was 
formed  between  him  and  the  plaintiff,  respecting  the 
to  the  transferred  claims.  The  jury  found  the  issue 
in  favor  of  Mitchell;  and  the  court  thereupon  rendered 
the  following  judgments: 

"•This  da}-  came  the  plaintiff  and  the  claimant,  by  their 
attorneys*;  and  issue  being  joined  upon  the  claim  as- 
serted by  the  said  Mitchell,  thereupon  came  a  jury,"  &c, 
"  who,"  &c,  "  upon  their  oaths,  do  say,  .'We, the  jury,  find 
the  issues  in  favor  of  the  claimant.'  It  is  therefore  con- 
red  by  the  court,  that  said  plaintiff  is  not  entitled  to 
have  and  recover  of  the  garnishee  anything  upon  his 
.  er  filed  in  this  cause;  and  it  is  further  considered 
and  adjudged,  that  said  claimant,  John  'Mitchell,  go  hence, 
and  recover  of  the  plaintiff  his  costs  in  this  behalf  ex- 
pended," &c. 

"In  this  case,  the  parties  came,  by  their  attorneys;  and 
the  garnishee  having  provsd  that,  before  the  issue  of  the 
garnishment  in  this  cause,  and  before  the  transfer  to  John 
Mitchell  of  the  claims  set  forth  in  said  answer,  it  was 
agreed  between  Abner  Jones,  who  was  the  sole  owner  of 


OF  ALABAMA.  319 


Uni'^n  India  Rubber  Company  v.  Mitchell. 


the  claims  presented  by  him  to  said  Morgan,  as  the  ad- 
ministrator of  said  Murphy,  that  all  the  demands  set  forth 
in  said  answer,  in  favor  of  said  Murphy,  against  said 
Abuer  Joues,  Jones  &  Iekes,  Ickes  &  Co.,  and  Jones, 
Huffman  &  Milton,  should  be  a  good  and  valid  set-off 
against  the  claims  of  said  Jones  against  the  estate  of  said 
Murphy;  and  it  also  appearing  to  the  satisfaction  of  the 
court,  that  the  balance  due  from  said  Morgan,  as  such  ad- 
ministrator, after  deducting  said  set-off,  is  $80  4G,  and 
that  said  balance  was  transferred  by  said  Joues  to  said 
Mitchell,  before  the  issue  of  said  garnishment, — it  is 
therefore  considered  by  the  court,  that  said  John  T.  Mor- 
gan, as  such  administrator,  go  hence  discharged,  and  re- 
cover of  the  plaintiff  and  James  Q.  Smith,  his  surety, 
the  costs  of  this  proceeding,"  &c. 

These  judgments  were  rendered  on  the  0th  June,  1858. 
There  is  a  bill  of  exceptions  in  the  record,  which  is  with- 
out date,  and  does  not  purport  to  have  been  signed  in 
term  time;  but  is  marked  by  the  clerk,  "Filed  20th  June, 
18o8." 

The  judgments  above  copied,  and  the  several  rulings  of 
the  court  to  which  exceptions  were  reserved,  are  now  as- 
signed as  error. 

Alex,  k  Jxo.  WiUTir,  with  Jas,  Q.  Smith,  for  the  ap- 
pellant, argued  the  several  assignments  of  error;  and,  on 
the  motion  of  the  appellee's  counsel  to  strike  the  bill 
of  exceptions  from  the  record,  submitted  these  views: 
The  act  of  184-1  required,  that  the  bill  of  exceptions 
should  be  affirmatively  shown  to  have  been  signed  iu 
term  time,  or  within  ten  days  thereafter  by  consent. — 
Wood  v.  Brown,  8  Ala.  ."~>*i-k  But  the  language  of  the 
Code  (§  2358)  is  materially  different  from  that  of  tlie 
former  statute.  Here  is  an  act  <»f  a  judicial  officer  of  the 
State,  done  in  his  official  capacity,  but  at  what  time  docs 
not  appear;  if  done  within  a  certain  time,  it  was  a  mat- 
if  official  duty,  the  refusal  to  perform  which  was  a 
misdemeanor,  (Code,  §  -■'I"'1';)  if  done  afterwards,  it  was  a 


320  SUPREME  COURT 


Onion  India  Rubber  Company  v.  Mitchell. 


plain  violation  of  his  official  duty.  Under  these  circum- 
stances, this  court  must  presume  that  the  officer  per- 
formed his  duty,  and  not  that  he  violated  it. — 4  Phil.  Ev\ 
(C.  &  H.  Notes,)  459-61. 

Jno.  T.  Morgan,  contra,  insisted  that  the  bill  of  excep- 
tions could  not  be  regarded  as  a  part  of  the  record,  and 
cited  the  following  cases:  Wood  v.  Brown,  8  Ala.  563; 
Kitchen  v.  Moye,  17  Ala.  143,  394;  Haden  v.  Brownr 
22  Ala.  572;  Murrah  v.  Br.  Bank  at  Decatur,  20  Ala, 
392. 

STONE,  J.— [Feb  13,  1861.]— The  bill  of  exceptions 
found  in  this  record  is  without  date;  and  the  record  con- 
tains no  evidence  that  it  was  signed  in  term  time,  or 
within  ten  days  afterwards,  pursuaut  to  written  consent 
of  the  parties  for  that  purpose. — Code,  §  2358.  A  motion 
has  been  made  to  exclude  the  bill  of  exceptions;  and 
under  these  circumstances,  a  majority  of  the  court  holds, 
that  the  exceptions  cannot  be  regarded  as  a  part  of  the 
record. — Kitchen  v.  Moye,  17  Ala.  143;  Haden  v.  Brown, 
22  Ala.  572;  Cox  v.  Whitfield,  18  Ala.  738. 

[2.]  The  bill  of  exceptions  being  excluded,  the  case  is 
brought  down  to  narrow  limits.  On  an  issue  between 
the  plaintiff  and  transferree,  the  jury  have  affirmed  the 
validity  of  the  transfer;  and  the  court  thereupon  dis- 
charged the  garnishee.  Whether  the  court  correctly 
ruled  on  the  subject  of  the  garnishee's  right  of  set-off, 
we  need  not  inquire,  as  that  is  a  subject  which  docs  not 
concern  the  present  appellant.  If,  therefore,  the  court 
committed  any  error,  (which  we  do  not  decide,)  it  was  an 
error  to  the  prejudice  alone  of  the  transferree;  and  he 
alone  would  be  heard  to  complain  of  it,  in  a  contest  be- 
tween those  parties. 

Judgment  affirmed. 


OF  ALABAMA.  321 


Bums  v.  Hudson. 


BURNS  vs.  HUDSON. 

[bill  in  equity  by  FKME  COVKKT,  for  recovery  of  slaves,  as  fart  of 

SKTAKATE  ESTATE,  WITH  ACCOUNT  OF  HIKB,  4C.J 

1.  Husband's  marital  rights  in  rttuf  to  wife's  personalty. — Prior  to  the 
adoption  of  the  statutes  of  this  State  securing  to  married  women 
their  separate  estates,  if  a  slave  was  given  by  a  father  to  his  mar- 
ried daughter,  or  was  purchased  by  the  daughter  at  the  adminis- 
trator's sale  of  her  father's  estate,  and  was  not  in  either  case  set- 
tled to  her  separate  use,  the  husband's  marital  rights  attached,  and 
the  slave  became  his  absolute  property. 

2.  Variance  between  allegations  and  ptoof. — The  bill  alleged,  that  the 
slave  in  controversy,  in  which  the  complainant  claimed  a  separate 
estate  under  a  contract  between  her  husband  and  one  J.,  was  sold, 
conveyed,  and  delivered  by  her  husband  to  said  J.,  iij  consideration 
of  the  hitter's  agreement  to  become  surety  for  him  in  a  certain 
law-suit,  and  to  pay  whatever  judgment  might  be  recovered  against 
him  ;  "  and  that  whatever  might  be  left  of  the  value  of  the  negro, 
and  her  hire,  after  satisfying  the  judgment  that  might  be  recovered 
against  B.  (the  husband),  and  the  girl  herself,  if  she  was  not  taken 
to  satisfy  the  judgment,  J.  was  to  convey  to,  and  settle  upon  com- 
plainant, in  her  own  right,  and  as  her  own  sole  and  separate  estate, 
and  to  her  hairs."  The  proof  was.  that  B.  delivered  the  slave  to 
J.  to  indemnify  him  against  his  liability  as  surety  for  the  costs  o1 
the  law-suit,  "upon  condition  that,  if  the  suit  should  go  against  B.' 
the  negro  was  to  be  sold,  and  the  proceeds  of  sale  to  be  first  applied 
to  the  payment  of  the  costs  of  the  suit,  if  necessary,  and  the  resi- 
due, if  any,  to  be  paid  over  to  the  complainant ;  but,  in  the  event 
that  B.  gained  the  suit,  the  negro  was  to  be  put  in  the  possession 
of  tue  complainant,  as  her  own  and  separate  property,  and  J.  was 
to  transfer  to  her  all  the  title,  interest  and  claim  that  he  had  to 
the  negro,  for  her  separate  ose  and  benefit."  //<  let,  that  there  was 
a  fatal  variance  between  the  allegations  and  proof. 

So,  where  the  bill  alleged,  that  J.,  in  pursuance  of  his 
previous  contra  t  with  B.,  verbajU*  •old'  and  delivered  the  slave  to. 
the  complainant,  as  hi  .ration  of  her 

promise  to  secure  and  indemnify  him  against  his  liability  as  Buret/ 
for  B.  in  the  law-suit;  while  the  proof  only  showed,  thatheda- 
livered  the  slave  to  her,  and  said  that  he  made  no  further  claim  to 
the  slave, — the  vanai,  ,d  fatal. 

4.  Sanu.So,  where  th<-  bill  alleged,  that  the  complainant  afterwards 
delivered  the  slave  to  the  defendant,  upon  his  promise  and  agree- 


322  SUPREME  COURT 


Burns  v.  Hudson. 


ment  to  indemnify  J.  against  his  liability  as  surety  for  B..to  satis- 
fy whatever  judgment  might  be  recovered  against  B.,  to  keep  the 
slave  hired  out  at  a  specified  price,  to  return  her  to  the  complain- 
ant after  it  was  ascertained  What  lie  had  to  pay  on  the  judgment 
against  B„  if  the  negro  was  not  taken  to  satisfy  the  judgment,  and 
to  account  for  her  hire;  while  tin-  proof  showed,  that  the  defend* 
ants  agreement  was  to  take  the  place  of  J.  as  surety  for  B„  and 
to  dispose  of  the  slave,  at  the  termination  of  the  suit,  in  like  man- 
ner as  J.  was  to  have  disposed  of  her  under  his  agreement  with  B., 
as  above  stated, — the  variance  was  held  fatal. 
5.  Dismissal  without  prejudice. — The  complainant  in  this  case  being  a 
married  woman,  suing  by  her  next  friend,  and  there  being  a  fatal 
variance  between  the  allegations  and  proof,  the  bill  was  dismissed 
without  prejudice. 

Appeal  from  the  Chancery  Court  of  Calhoun. 
Hoard  before  the  Hon.  James  B.  Clakk. 

The  bill  in,  this  case  was  filed  by  Mrs.  Mahulda  Burns, 
the  wife  of  A.  S.  Burns,  suing  by  her  next  friend,  against 
SannK-1  P.  Hudson  and  the  said  A.  S.  Burns;  and  sought 
a  recovery  of  certain  slavves  in  the  possession  of  Hudson, 
in  which  the  complainant  claimed  a  separate  estate,  with 
an  account  of  their  hire.  The  complainant  asserted  title 
to  the  slaves  under  a  verbal  gift  from  her  father,  in  South 
Carolina,  in  1831,  of  the  female  slave  who  vVas  the  moth- 
er of  all  the  others;  a  subsequent  purchase  of  said  slave 
at  the  administrator's  sale  of  her  father's  estate,  in  South 
Carolina,  prior  to  the  year  1840;  a  verbal  contract  between 
her  said  husband  and  one  John  P.  Jennings,  made  some 
time  during  the  year  1842  or  1843,  by  which  Jennings 
obtained  the  possession  of  said  slave;  a  subsequent  verbal 
contract  between  Jennings  and  herself,  by  which  she  ob- 
tained the  possession  of  the  slave;  and  a  verbal  contract, 
of  later  date,  between  herself  and  the  defendant  Hudson, 
under  which  she  delivered  fhe  slave  to  him.  The  defend- 
ant Hudson  denied  the  title  asserted  by  the  complainant, 
and  claimed  title  in  himself  under  a  purchase  from  said 
Jennings  and  A.  S.  Burns,  made  in  the  presence,  and 
with  the  consent  of  the  complainant.  The  material  alle- 
gations of  the  bill,  and  the  substance  of  the  evidence,  are 
stated  in  the  opinion  of  the  court.     On  fiual  hearing,  on 


OF  ALABAMA.  323 


Burns  v.  Hudson. 


pleadings  and   proof,  the  chancellor  dismissed  the  bill ; 
and  his  decree  is  now  assigned  as  error. 


'©■ 


Joiin  White,  for  the  appellant. 
G.  C.  Wiiatley,  contra, 

R.  W.  WALKER,  J.— [July  4,  I860.]— There  is  no 
doubt  that,  when  the  contract  was  made  between  A.  S. 
Burns  and  John  B.  Jennings,  the  negro  girl  Lucy  was 
the  property  of  the  former;  for,  whether  we  consider  the 
original  source  of  title,  as  a  gift  from  Mrs.  Burns'  father 
to  her,  or  as  her  purchase  at  the  administration  sale,  it  is 
plain  that,  as  the  slave  was  in  no  way  settled  to  the  sepa- 
rate use  of  the  wife,  the  marital  rights  of  her  husband 
attached,  and  the  property  became  his  absolutely. 

[2.]  If,  then,  Mrs.  Burns  has  now  a  separate  estate  in 
the  slave,  or  can  justly  claim  a  settlement  of  the  same  to 
her  separate  use,  she  must  deduce  her  right  from  the 
transactions  with  John  B.  Jennings,  or  from  the  subse- 
quent contract  with  the  defendant.  However  well  found- 
ed such  a  claim  may  be  in  point  of  fact,  it  can  be  of  no 
avail  to  the  complainant  in  this  suit;  for  the  reason,  that 
the  allegations  and  proof,  in  reference  to  the  matters 
which  form  the  foundation  of  her  title  to  relief,  if  she  has 
any,  do  not  correspond. 

The  amended  bill  alleges,  that  the  cdtaplainaht's  hus- 
band, being  engaged  in  a  law-suit,  or  law-suits,  with  one 
Ilindman,  sold,  conveyed,  and  delivered  the  girl  Lucy  to 
John  B.  Jennings;  and  that  Jennings,  as  a  consideration 
therefor,  contracted  and  agreed  to  become  surety  for 
Burns  in  said  suit,  or  suits,  in  some  way,  and  to  pay 
whatever  might  be  i  I  againt  Burns;  and  wha 

might  be  left  of  the  value  of  the  negro,  and  her  hire,  after  sal* 
isjying  the  judgments  (hat  might  be  recovered  against  B\ 
ami  thi  girl  '  ,  imt  taken  to  satisfy  the  judg- 

ments, Jennings  w  vey  to  and  settle  upon  complai 

in  fa  r  oicn  right,  and  as  h.  r  oivn  sole  and  separa  .  and 

■  heirs.     The  only  evidence  in  relation  to  the  contract 
between  Burns  and  John  B.  Jennings,  is  the  testimony  of 


324 SUPREME  COURT 

Burns  v.  Hudson. 


William  M.  Jennings,  the  son  of  John  B.,  who  eta 
that  his  father  became  surety  for  Burns,  tor  costs,  in  a 
law-suit  between  Burns  and  one  Hindman ;  and  that  to 
indemnify  Jennings,  Burns  delivered  the  negro  Lucy 
into  his  possession,  upon  condition,  that  if  the  suit  should 
go  against  Burns,  the  negro  wis  to  be  sold,  and  the  proceeds  of 
the  sale  first  applied  to  the  payment  of  the  costs  of  the  suit,  if 
necessary,  and  the  residue,  if  any,  to  be  paid  over  to  the  com- 
plainant; in  the  event,  however,  that  Burns  gained  the  suit,  the 
negro  icas  to  be  put  in  the  possession  of  the  complainant,  as  Iter 
own  and  separate  properly,  and  Jennings  was  to  transfer  to 
her  ad  the  title,  interest,  and  claim  that  he  had  to  the  negro,  for 
her  separate  use  and  benefit. 

[3.]  The  bill  further  alleges,  that  in  1843  Jennings,  by 
a  verbal  contract,  sold  and  delivered  the  negro  Lucy  to 
complainant,  as  her  separate  estate,  and  to  her  heirs,  in 
pursuance  of  his  previous  contract  with  Burns,  in 
consideration  of  the  promise  of  complainant  "to  secure 
and  indemnify,  and  cause  to  be  secured  and  indemnified, 
the  said  Jennings  against  all  loss  and  liability,  as  surety 
for  Burns  in  the  suit  or  suits  above-named."  The  only 
evidence  introduced  to  support  this  allegation,  is  the  tes- 
timony of  Win.  M.  Jennings  and  Mrs.  Cowart.  The 
first-named  witness  states,  that  on  a  particular  occasion 
in  1843,  and  in  the  presence  of  the  defendant,  Mrs.  Cow- 
art,  and  the  witness  himself,  John  B.  Jennings  remarked, 
that  defendant  was  willing  to  take  his  place  as  surety, 
and  asked  the  complainant  if  she  was  willing;  to  which 
she  gave  her  assent.  Jennings  then  said  to  her,  "There 
is  your  negro  woman ;  take  her,  and  dispose  of  her  as 
you  choose."  Mrs.  Cowart  says,  that  Jennings  remarked 
to  the  complainant,  that  he  now  delivered  her  negro  girl 
to  her,  and  made  no  further  claim  to  her.  There  is  no 
evidence  of  an  agreement,  on  the  part  of  the  complain- 
ant, to  secure  Jennings  against  loss  as  surety  for  Burns, 
which  is  the  alleged  consideration  for  the  transfer;  nor  is 
anything  said  as  to  a  delivery  to  the  separate  use  of  the 
complainant.     Certainly,  the  transaction,  as  proved,  was 


OF  ALABAMA.  325 


Burns  v.  Hudson. 


not  an  execution  of  the  original  contract  between  Burns 
and  Jennings. 

[4.]  The  bill  farther  alleges,  that  upon  the  same  day  on 
which  Jennings  delivered  the  girl  to  complainant,  or 
shortly  thereafter,  the  complainant. and  defendant  made 
a  contract,  by  which  the  complainant  agreed  to,  and  did, 
deliver  the  negro  Lucy  to  the  defendant,  and  the  defend- 
ant agreed  to  secure  and  indemnify  Jenning  as  surety 
for  Burns,  and  to  pay  and  satisfy  whatever  judgments 
might  be  recovered  against  Burns;  "that  to  make  him 
safe  in  so  doing,  he  would  take  the  girl  into  his  posses- 
sion— that  he  would  keep  her  hired,  at  some  good  house, 
at  six  dollars  per  month;  that  he  would  return  the  girl 
to  complainant,  after  it  was  ascertained  what  he  would 
have  to  pay  on  whatever  judgments  might  be  recovered 
against  Burns  in  said  cases  in  order  to  save  Jeunings 
harmless,  if  said  negro  was  not  taken  to  satisfy  the  judg- 
ments that  might  be  recovered  therein;  and  upon  that 
agreement,  and  that  he  would  also  account  to  complain- 
ant for  the  hire  of  said  girl,  the  defendant  took  possession 
of  said  girl."  The  only  proof  to  sustain  this  allegation, 
is  the  testimony  of  the  same  witness,  J.  M.  Jennings, 
who  states,  that  he  delivered  the  negro  to  Hudson,  for 
complainant;  and  that  the  slave  was  to  be  disposed  of  in 
the  hands  of  Hudson,  at  the  termination  of  the  law-suit 
between  Burns  and  Hindman,  in  like  manner  as  she  was 
to  have  been  by  John  B.  Jenni ngs.  lie  further  states, 
that  it  w.  od,  that  Hudson  should  take  the  place  of 

Jenuings  as  surety,  and  become  liable  in  like  manner  as 
Jen,  row,  looking  to  the  testimony  of  the  same  wit- 

rtain  the  manner  in  which  thegirl  was  to  have 
1    »ni  disposed  of  by  Jennings  at  the  termination  of  the  suit 

••ecu  Barns  and  Hindman,  we  find  that  the  agreement 
Was,  that  "if  the  -nit  should  go  against  Burns,  the  ne- 
gro was  to  be  sold,  and  the  proceeds  of  the  sale  first  ap- 

I  to  the  payment  of  the  costs  of  the  suit,  if  necessary, 
and  the  i  if  any,  to  be  paid  over  to  complainaut. 

In  the  oven!  that  Burn-  gained  the  suit,  the  negro  was  to 

ill  in  the  of  complainant,  as  her  separate 


I  BFPREME  COURT 

Burns  v.  Hudson. 

property-"  The  difference  between  this  contract,  and 
that  which  the  complainant  alleges  she  made  with  Hud- 
eon,  is  obvious. 

It  is  evident  from  this  review  of  the  allegations  of  the 
bill,  and  the  evidence  adduced  in  support  Of  them,  that 
in  regard  to  each*one  of  the  successive  transactions 
through  which  the  complainant  seeks  to  deduce  her  claim 
to  relief — the  original  contract  between  Burns  and  Jen- 
nings, the  subsequent  transfer  of  the  slave  by  Jeunings 
to  the  complainant,  and  the  contract  between  the  com- 
plainant and  defendant — the  case  as  stated  is  not  the  case 
which  is  proved.  Consequently,  there  was  no  error  in 
dismissing  the  bill. 

[5.]  The  evidence,  however,  does,  as  we  have  seen,  tend 
to  show  that  the  defendant  obtained  possession  of  the  ne- 
gro under  an  agreement  that  he  should  take  in  all  respects 
the  place  of  Jennings — that  is,  that  he  was  to  become 
bound  for  Burns  in  like  manner  as  Jennings  had  been; 
and  that,  at  the  termination  of  the  law-suits,  he  would 
make  the  same  disposition  of  the  negro  which,  by  his 
contract  with  Burns,  Jennings  had  agreed  to  make. 
Without  in  any  manner  committing  ourselves  to  the  va- 
lidity of  any  claim  which  complainant  may  assert  as 
growing  out  of  these  facts,  we  think  that,  under  all  the 
circumstances  of  the  case  as  disclosed  by  the  record,  it  is 
proper  that  the  bill  should  be  dismissed  without  preju- 
dice. Accordingly,  the  decree  of  the  chancellor  is  re- 
versed, and  a  decree  here  rendered,  dismissing  the  bill 
without  prejudice. — Danforth  v.  Herbert,  33  Ala.  499; 
Singleton  v.  Gayle,  8  Porter,  270;  Cameron  v.  Abbott, 
30  Ala.  419;  Lang  v.  Waring,  25  Ala.  625;  Edwards  v. 
Edwards,  30  Ala.  394.  The  complainant's  next  friend 
must  pay  the  costs,  both  of  this  court,  and  of  the  court 
below. 

A.  J.  Walker,  C.  J.,  not  sitting. 


OF  ALABAMA.  .  327 


Bush  and  Wife  v.  Cunningham's  Executors. 


BUSH  and  WIFE  v*.  CUNNINGHAM'S  EXECUTORS. 

[PROCEBBINQ  BEFORE  PROBATE  COURT  FOR  RECOVERY  OF  LEGACY.] 

1.  Bequest  to  creditor,  with  direction  far  deduction  of  debt  from  legacy. — 
Where  the  testator,  after  making  certain  specific  bequests  to  his 
wife,  directe  I  that  the  residue  of  his  property,  both  real  and  per- 
sonal, should  be  divided  into  three  equal  parts,  bequeathed  one  of 
these  parts  to  the  children  of  a  deceased  br  ither,  and  added  to  the 
bequest  these  wot  Is:  "  but  the  amount  I  now  am  indebted  to  them  is 
detiucted,"—Iield,  that  this  clause  did  not  impose  upon  the  children 
an  abandonment  of  their  debts  against  the  estate,  as  a  condition 
upon  which  they  should  take  the  legacy,  but  only  required  a  de- 
duction of  the  debts  firem  the  legacy  ;  that  in  making  this  deduc- 
tion, the  ag'gregate  amount  of  the  debts  must  be  subtracted  from 
thep  entire  legacy  to  the  children  collectively;  and  that  the  amount 
to  which  the  children  were  entitled  under  the  bequest  must  be 
sac  irtained  as  in  cases  where  property  is  brought  into  hotchpot — 
that  is  to  say,  after  deducting  the  sp<  cine  bequests  to  the  widow, 
the  amount  of  the  debts  due  to  the  children  must  he  hist  added  to 

general  residnum  of  the  nd  then  deducted  from- one- 

third  of  that  amount. 

2.  Burden  t>f  proof. — In  a  proceeding  before  the  probate  court,  after 
the  expiration  of  eighteen  months  from  the  grant  of  letters  testa- 
mentary, for  the  recovery  of  a  residuary  legacy,  from  which  is  to 
be  deducted,  by  the  terms  of  the  Inquest,  a  debt  due  from  the  tes- 
tator to  the  legatee,  it  is  incumbent  on  the  legatee,  and  not  <m  the 

utor.  to  prove  the  amount  of  the  indebtedness  to  him  ;  and 
unless  lie  makes  snob  proof,  and  thereby  shows  that  there  will  be 
a  sufficiency  o  e.maining   in  the  hands  of  the  executor  to 

pay  all  the  debts,  charges,  and  prior  legacies,  he  Is  not  entitled  to 
a  decree. 

3.  Election  :  jurisdiction  qf  probate  and  chancery  courts  over  proceedings 
for  r<  ■  •  legncy* — Where  a  resi  luary  legacy  contains  a  clause 
directing  a  debt  daefrom  the  testator  to  the  legatees, arising  from 
the  fact  that  he  had  made  an   unauthorized   sale  of  their  inti 

in  a  tract  of  land,  to  be  deducted  from  the  amount  of  the  leg 
and  -Mine  of  the  ]■  .  ■  infants,  ami,  consequently,  incapable 

of  elei  ting  to  ratify  th>  he  i  haueery  court  alone  can  , 

:mi  election  for  them,  and  is,  therefore,  the  appropriate  forum  for 
the  setth  m  n(  ol  tainment  of  tie 


328 SUPREME  COURT 

Bush  and  Wife  v   Cunningham's  Executors. 


Appeal  from  the  Probate  Court  of  Talladega. 

In  the  matter  of  the  estate  of  John  H.  Cunningham, 
deceased,  on  the  petition  of  A.  C.  Bush  and  Mar)-,  his 
wife,  (formerly  Mary  Cunningham,)  D.  F.  Shuford  and 
Cynthia,  his  wife,  (formerly  Cynthia  Cunningham,)  John 
B.  Cunningham  and  Victoria  Cunningham,  for  the  re- 
covery of  a  legacy,  which  they  claimed  under  the  second 
clause  of  the  will  of  said  John  II.  Cunningham,  deceased, 
which,  after  making  several  specific  bequests  to  the  said 
testator's  wife,  was  in  the  following  words:  "The  re- 
maining portion  of  my  estate,  both  real  and  personal,  not 
bequeathed,  is  to  be  in  three  equal  parts;  W.  J.  Cun- 
ningham istohave  onethird ;  James ZH.  Montgomery,  Julia 
Jackson,  and  E valine  Lane,  one  third  ;  and  the  other  third 
to  my  brother's,  Ansel  Cunningham,  deceased,  children  ; 
but  the  amoir.it  I  now  am  indebted  to  them  is  deducted, 
both  real  and  personal."  The  plaintiffs  claimed  as  chil- 
dren of  said  Ansel  Cunningham,  deceased,  and  filed  their 
petition  after  the  lapse  of  eighteen  months  from  the 
grant  of  letters  testamentary.  The  executors,  who  were 
made  defendants  to  the  proceeding,  "pleaded  the  general 
issue,  with  leave  to  give  in  evidence  auy  special  matter 
which  might  be  pleaded  in  bar,  and  with  like  leave  to  the 
petitioners  in  reply." 

On  the  heating  of  the  petition,  the  plaintiffs  read  in 
evidence  the  will  of  the  testator,  with  its  probate,  the 
inventory,  sale-bill  of  a  portion  of  the  personal  property, 
and  allotment  of  the  slaves  by  commissioners  under  an 
order  of  the  court;  and  proved  the  solvency  of  the  es- 
tate. "The  defendants  then  offered  to  prove,  that  said 
John  II.  Cunningham,  the  testator,  was  the  executor  of 
his  father,  who,  by  his  will,  left  his  real  estate  to  his 
widow  for  lite,  and  after  her  death  it  was  to  be  equally 
divided  among  his  children,  seven  in  number,  one  of 
whom  was  said  Ansel  Cunningham,  the  lather  of  the  pe- 
titioners: that  said  John  II.,  before  the  death  of  his 
father's  widow,  purchased  all  the  interests,  except  that  of 
said  Ansel  Cunningham,  aud  that  of  W.  J.  Cunningham, 


OF  ALABAMA.  329 


Bush  and  Wife  v.  Cunningham's  Executors. 


one  of  the  defendants  in  this  proceeding;  that  he  afterwards 
purchased  the  share  of  said  W.  J.  Cunningham;  that  he 
sold  said  laud  after  the  death  of  the  widow,  and  made  a 
fee-simple  deed  for  the  whole  tract,  with  covenants  of  war- 
ranty to  protect  the  title;  that  [this  was  done  after  the 
death  of  said  Ansel  Cunningham,  and  with  the  consent 
of  his  widow  and  such  of  his  children  as  were  of  full 
age, — he,  the  said  John  II.,  to  pay  them  one-seventh  of 
the  amount  for  which  he  sold  it;  that  he  did  this  as 
fast  as  the  children  cameof  age,  and  also  paid  to  the 
widow  of  said  Ansel  the  share  to  which  she  was  entitled 
under  the  laws  of  Georgia."  The  plaintiffs  objected  to 
this  evidence,  as  illegal  and  irrelevant;  the  court  over- 
ruled their  objections,  and  they  excepted.  The  defend- 
ants offered  to  prove,  also,  "that  the  said  John  II.  Cun- 
ningham was  also  the  executor  of  his  mother,  who,  at 
her  death  in  1851-2,  bequeathed  $1200  to  the  children  of 
said  Ansel  Cunningham;  and  that  the  said  John  II.,  up 
to  the  time  of  his  death,  paid  all  the  said  children,  as 
they  came  of  age,  their  respective  shares  of  this  legacy," 
This  evidence  the  court  admitted,  'against  the  objection 
of  the  petitioners,  and  they  excepted.  It  was  admitted 
that  the  names,  ages,  &c,  of  all  the  parties,  were  correctly 
stated  in  the  petition;  that  all  of  the  petitioners  were  of 
foil  age  When"  the  petition  was  filed;  that  two  of  them 
were  under  the  age  of  twenty-one  when  the  testator  died, 
and  that  he  had  never  paid  either  of  these  two  anything 
on  account  of  his  indebtedness  to  them.  The  other  chil- 
dren of  said  Ansel  Cunningham,  who  were  not  before 
the  court  as  parties,  were  alleged  in  the  petition  to  be 
under  the  age  of  twenty-one  years.  This  being  all  the 
evidence,  (except  some  parol  testimony  a?  bo  the  testator's 
instructions  to  the  person  who  wrote  the  will,  which  re- 
quires no  particular  notice,)  the  court  dismissed  the  peti- 
tion, and  lhe  petitioners  excepted. 

The  decree  of  the  court,  and  its  rulings  on  the  evidence, 
are  now  assigned  as  error. 

Jas.  B.  Martin,  for  appellants. 
22 


330 SUPREME  COURT 

Bush  and  Wife  v.  Cunningham's  Executors. 

L.  E.  Parsons,  and  Jxo.  White,  contra. 

A.  J.  WALKER,  C.  J.— [July  3,  I860.]— The  clause 
subjoined  to  the  bequest  to  the  children  of  xVnsel  Cun- 
ningham— "but  the  amount  I  now  am  indebted  to  them 
is  deducted,  both  real  and  personal  " — does  not  exempt 
the  testator's  estate  from  the  payment  of  the  debts  due 
to  the  children  of  Ansel  Cunningham,  or  impose  upon 
them  the  abandonment  of  those  debts  as  a  condition  upon 
which  they,  should  take  the  legacy.  Its  entire  effect  is  to 
require  a  deduction  from  the  legacy  of  the  amount  of  the 
debts.  If  it  required  an  abandonment  of  the  debts,  there 
would  be  a  loss  of  the  debts  to  those  children,  as  well  as 
a  deduction  of  the  amount.  The  children  have  a  right 
to  collect  the  debts  from  the  estate;  but,  in  ascertaining 
their  legacy,  there  is  to  be  a  deduction  of  the  amount  of 
the  debts.  We  understand  the  clause  to  require  that  a 
deduction  from  the  entire  legacy  of  the  children  collect- 
ively is  ta  be  made  of  the  gross  or  aggregate  amount  of 
the  indebtedness,  and  not  that  there  is  to  be  a  deduction 
from  the  several  shares  of  the  respective  children  of  the 
distiuct  amounts  which  may  be  due  them  separately. 
The  deduction  is  evidently  made  a  common  burden  upon 
all  the  children. 

In  ascertaining  the  legacy  to  be  divided  among  the 
children  of  Ansel  Cunningham,  the  following  is  the  plan 
to  be  pursued:  After  the  satisfaction  of  the  debts  and 
expenses  aad  costs  of  administration,  the  bequests  to  the 
widow  must  be  taken  out;  then,  to  the  residuum  must 
be  added  the  amount  of  the  testator's  indebtedness  to 
the  children  of  Ansel  Cunningham,  and  the  residuum 
thus  increased  must  be  divided  into  three  equal  parts ; 
of  these  three  parts,  one  must  be  assigned  to  Wm.  J. 
Cunningham,  one  to  James  M.  Montgomery,  Julia 
Jackson,  and  Evaline  Lane,  to  be  equally  divided  between 
them;  and  the  remaining  third,  after  deducting  the 
amount  of  the  indebtedness  before  added  to  the  residuum, 
must  be  equally  divided  among  the  children  of  Ansel 
Cunningham.  The  indebtedness  to  the  children  of  Ansel 


OF  ALABAMA.  331 


Bush  and  Wife  v.  Cunningham's  Executors. 


Cunningham  must  be  brought  into  hotchpot;  otherwise, 
there  would  be  a  balance  not  distributed  under  the  will, — 
a  result  which  it  was  evidently  the  purpose  of  the  testa- 
tor to  avoid.  This  will  be  apparent  upon  making  a  re- 
view of  the  process  ot  distribution  upon  a  different  plan. 
Let  the  actual  residuum,  after  the  deduction  of  the 
widow's  legacy,  be  divided  into  three  equal  parts,  and 
then  let  a  sum  equal  to  the  indebtedness  to  Ansel 
Cunningham's  children  be  deducted  from  their  share,  and 
there  would  be  au  intestacy  as  to  the  sum  deducted.  This 
result,  which  is  inconsistent  with  the  testator's  intention, 
is  avoided  by  adding  the  amount  to  be  deducted  to  the 
residuum  to  be  divided  into  three  equal  parts. 

From  this  exposition  of  the  plan  of  calculation 
to  be  adopted  it  bcomes  clear,  that  proof  as  to  the 
amount  of  the  testator's  indebtedness  to  the  children 
of  Ansel  Cunningham  is  indispensable  to  the  ascertain- 
ment of  their  distributive  share;  and  it  is  totally  impos- 
sible to  determine  what  is  the  distributive  share  of  those 
children,  or  any  one  or  more  of  them,  without  such  proof ; 
and  it  is  equally  impossible  to  determine,  in  the  absence 
of  such  proof,  whether  the  probate  judge  could,  with 
v  to  the  estate,  decree  to  them,  in  advance  of  a  final 
settlement,  any  definite  amount  on  account  ot  their  lega- 
cies; for  it  may  be  that  the  aggregate  amount  of  the  in- 
debtedness will  absorb  the  legacy. 

['2.]  It  was  shown  that  the  testator  was  indebted  to  the 
above-named  children  on  two  accounts;  but  as  to  the 
amount  of  indebtedness  on  one  account  there  was  no 
proof.  The  onus  of  making  that  proof  was  upon  th< 
titioners.  The  amount  of  the  indebtedness  was  a  matter 
which  we  must  presume  to  have  been  as  much  within 
the  knowledge  of  the  petitioners,  as  of  th 
It  was  not  defensive  mat  ■  brought  forward  by  the 

executors.     It   was   an    element   to  be  affirmative 
side  red  in  ascertaining  whether  the  petitioners  were  en- 
titled   to    the  decree    sought.      Under  section    i ,"." 
devolved   upon    the  petitioners   to  show   that    they  were 
legatees,  and  ftiat  after  the  payment  to   them  of  some 


332 SUPREME  COURT 

Tillman  v.  Chadwiek. 


amount  there  would  be  a  sufficiency  of  assets  to  pay  all 
tlic  debts,  charges,  and  other  legacies  entitled  to  priority. 
This,  we  decide,  they  have  not  done. 

[3.]  A  part  of  the  testator's  indebtedness  to  the  chil- 
dren, mentioned  in  the  will,  arises  Out  of  the  fact  of  his 
making  an  unauthorized  sale  of  their  interest  in  a  tract 
of  land.  Those  who  are  infants  have  not  elected  to  ratify 
the  sale  and  take  their  share  of  the  purchase-money,  and 
are  incapable  from  infancy  of  making  that  election.  An 
election  can  only  be  made  for  them  by  the  chancery  court. 
The  amount  of  indebtedness  depends  upon  that  election. 
It  would,  therefore,  seem  that  the  appropriate  forum  for 
the  settlement  of  the  estate  and  the  ascertainment  of  the 
legacies  of  the  above-named  children  would  be  the  chan- 
cery court. 

Decree  affirmed. 


♦TILLMAN  vs.  CHADWICK. 

[trespass  by  OWSBR  against  hired  or  slate.] 

1.  Hirer'*  authority  to  punish  slave,  and  liabilityYor  abuse  of  that  au- 
tJiority. — In  the  absence  of  qualifying  stipulations  in  the  contract 
of  hiring,  the  hirer  acquires  the  master'.;  authority  to  inflict  rea- 

ible   punish  n   the  slave;  and  in  determining  what  is  a 

reasonable  punishment,-  a  question  which  admits  of  no  certain 
and  uniform  solution, — regard  must  he  had  to  the  nature  of  the 
offense,  and  t<>  the  temper  of  the  slave  while  receiving  the  pun- 
ishment ;  since  obstinacy,  refractorinesBj  or  rebelliousness  on  his 
part,  justifies  severer  punishment  than  would  otherwise  be  right 
and  proper. 

2.  Ch  i/. — A  charge  to  the  jury,  asserting  that,  if 
the  punishment  inflicted  by  the  hirer  on  a  slave  "  was  beyond 
what  was  right  ami  proper  under  the  circumstances,  then  the  onus 
was  on  him  to  prove  that  he  was  authorized  by  the  slave's  conduct 
to  whip  him  thus  severely,  and  (beyond  what  would  have  been 
right  and  proper," — is  ealeulated  to  mislead  alfd  confuse  the  jury, 
and  is  pixvperly  refused. 


OF  ALABAMA. 333 

Tillman  v.  Chiidwick. 


Appeal  from  the  Circuit  Court  of  Russell.   . 
Tried  before  the  Hon.  Robert  Dougherty. 

Tins  action  was  brought  by  William  L.  Tillman, 
against  Dickinson  Chadwick,  to  recover  damages  for 
injuries  inflicted  on  a  slave.  At  the  time/)f  the  commis- 
sion of  the  alleged  trespass,  the  slave  was  in  the  defend- 
ant's possession,  under  a  contract  of  hiring.  The  only 
error  assigned  is,  the  refusal  of  the  circuit  court  to  give, 
at  the  instance  of  the  plaintiff',  the  following  charge: — 
"If  the  jury  believe,  from  all  the  facts  and  circumstances 
of  the  case,  as  gathered  from  the  testimony,  that  the 
punishment  inflicted  by  the  defendant  on  the  slave  was 
improper,  and  beyond  what  was  right  and  proper  under 
the  circumstances,  the  onus  was  on  him  to  prove  that  he 
was  authorized  by  the  slave's  conduct  to  whip  him  thus 
severely,  and  beyond  what  would  have  been  right  and 
proper;"  to  the  refusal  ot  which  charge  the  plain  tilt  re- 
served an  exception. 

B.  II.  Baker,  and  D.  Clopton,  for  the  appellant. 
Goldtiiwaiie,  Rice  &  ISemple,  contra. 

STOKE,  J.— [Jan.  30,  1801.]— It  is  a  settled  doctrine 
of  the  law,  that  the  owner  of  a  slave,  and  whoever  right- 
fully stands  in  his  place,  is  "of  necessity  vested  with  au- 
thority to  inflict  on  such  slave  reasonable  punishment  for 
the  breach  of  police  regulations." — Gillian  v.  Center,  9  Ala. 
895.  The  hirer  of  a  slave,  when  there  are  no  qualifying 
stipulations  in  the  contract  of  hiring,  is,  for  the  time  be- 
ing, armed  with  the  power  of  the  owner  in  this  respect. 
Nelson  v.  Bon dii rant,  26  Ala.  341;  Hall  v.  Goodaon, 
32  Ala.  277, 

What,  is  reasonable  punishment,  and  when  it  can  bo 
affirmed  that  correction  has  gone  beyond  this  boundary, 
and  become  unreasonable  and  cruel,  is  a  question  which 
admits  of  no  certain  and  uniform  solution.  Absolute 
obedience  and  subordination  to  the  lawful  authority  of 
the  master,  are  the  duty  of  the  slave;  and  the  master  or 


834 SUrRKME  COURT 

Tillman  v.  Chadwick, 

birer  may  employ  so  much  force  as  may  be  reasonably 
necessary  to  secure  that  obedience.  The  law  cannot  en- 
ter into  a  strict  scrutiny  of  the  precise  force  employed, 
with  the  view  of  ascertaining  that  the  chastisement  had 
or  had  not  been  unreasonable.  Still  there  is  a  boundary, 
and  the  force  must  not  be  grossly  disproportionate  to  the 
offense.  Much  must  depend  on  the  nature  of  the  trans- 
gression in  the  first  instance,  and  on  the  temper  of  the 
slave  while  receiving  the  punishment.  On  the  other 
hand,  the  master,  hirer,  or  overseer,  should  ever  bear  in 
mind,  that  the  main  purpose  of  correction  is,  to  reduce 
an  offending  and  refractory  slave  to  a  proper  state  of 
submission,  respect  and  obedience  to  legitimate  authority. 
This  chastisement  should  be  so  attempered  and  applied 
as  to  secure  the  end  aimed  at,  with  as  little  risk  of  per- 
manent injury  or  danger  to  the  slave  or  his  owner  as  is 
reasonably  compatible  with  the  surroundings. — See  Dave  , 
v.  The  State,  22  Ala.  23;  Eskridge  v.  The  State,  25  Ala. 
30;  Hegan  v.  Carr,  6  Ala.  471. 

Punishment  for  a  past  offense,  which  is  inflicted 
with  a  view  to  reformation,  should  be  graduated  by 
the  nature  of  the  offense;  and  somewhat  by  the  fact, 
whether  the  offense  has  been  of  frequent  or  rare  com- 
mission. We  mean  this  remark  for  cases  where  the  slave 
submits  without  obstinacy  to  the  proper  correction. 
Should  the  slave  prove  rebellious  or  refractory,  more 
severity  would  doubtless  be  necessary,  to  secure  proper 
reformation  and  example.  In  this  way,  legitimate  pun- 
ishment may  sometimes  be  carried  much  beyond  what 
the  offense  in  the  first  instance  would  seem  to  render 
necessary. 

We  supp'^e  the  idea  last  above  suggested  was  probably 
had  in  v:".v  by  the  counsel  who  asked  the  charge  in  this 
case,  ti*d  refusal  to  give  which  raises  the  only  question 
which  this  record  presents  for  our  consideration.  The 
substance  of  the  charge  asked  was,  that  if  the  whipping 
was  beyond  what  was  .right  and  proper,  then  the  onus 
was  on  the  defendant  to  show  that  the  negro's  conduct 
was  such  as  to  authorize  his  hirer  to  whip  him  beyond 


OF  ALABAMA.  835 


Cox  v.  Mobile  &  Girard  Railroad  Company. 


what  was  right  and  proper.  Now,  the  negro's  conduce 
might  possibly  be  such  as  to  justify  much  greater  correc- 
tion, than  would  under  ordinary  circumstances  be  right 
and  proper;  yet,  this  would  only  show  that  much  greater 
chastisement,  under  some  circumstances,  would  be  right 
and  proper,  than  would  be  under  le3S  aggravating  cir- 
cumstances. Under  no  state  of  case  could  it  justify  cor- 
rection beyond  what  was  right  and  proper. 

The  charge  asked  was  calculated  to  confuse  and  mis- 
lead the  jury,  and  was  rightly  refused  by  the  court. — 
Shop.  Digest,  462,  §§  81,  62,  68. 

Judgment  of  the  circuit  court  affirmed. 


COX  vs.  MOBILE  k  GIRARD  RAILROAD  COM- 
PANY. 

[ACTION     OS    PROMISSORY    NOTE,   BY    ENDORSEE     AC.VINST    MAKER.] 

1.  Discharge  of  surety  by  new  contract  between  ate&itor  and  pYincpal 
debtor. — A  new  contract  between  the  creditor  and  the  prin- 
cipal debtor,  made  without  the  consent  of  the  surety,  and 
founded  upon  valuable  consideration,  by  which  the  time  of  pay- 
ment is  extended,  discharges  the  surety,  although  n  other  day  of 
payment  is  fixed. 

2.  Same;  usury. — An  agreement  by  the  principal  debtor  to  pay  usu- 
rious interest  in  future,  in  consideration  of  the  creditor's  promise 

of  payment,  being    void,  doe*  n..t  discharge  the 
surety  ;  whether    the   actual    payment  of  usurious  i  .ltsrast  by  the 
incipal,  would  discharge  tin-  surety,  quart f 

Appeal  from  the  Circuit  Court  of  Macon. 
Tried  before  the  Hon.  Robert  Dougherty. 

This  action  was  brought  by  the"appellce,  a  corporation 
chartered  by  the  legislator*  of  this  State,  against  William 
Cox;  and  was  founded  on  a  promissory  note  for  8144S  97, 
executed  by  one  A.  D.  Cleckley  and  the  defendant,  dated 


:      SUPREME  COURT 

Cox  v.  Mobile  &  liirard  Railroad  Company. 


the  15th  April,  1850,  and  payable  on  the  1st  January, 
1851,  with  interest  from  the  the  1st  January,  1850,  to 
"William  M.  Lampkin  or  bearer.  The  defendant  filed 
three  special  pleas,  each  averring,  in  substance,  that  he 
was  Cleckley's  surety  ou  the  note,  and  that  the  payee,  af- 
ter the  maturity  of  the  note,  entered  into  a  contract  with 
Cleckley,  without  the  defendant's  knowledge  or  consent, 
whereby,  for  a  valuable  consideration  paid  by  said  Cleck- 
ley, said  payee  extended  the  time  of  payment  fixed  by 
the  note;  and  lie  also  pleaded  usury,  and  the  failure  of 
the  plaintiff'  to  sue  Cleckley  after  due  notice.  On  the 
trial,  asc  the  bill  of  exceptions  shows,  after  the  plaintiff 
had  read  to  the  jury  the  note  which  was  the  foundation 
of  the  suit,  the  defendant  read  in  evidence  the  deposition 
of  said  Cleckley,  who  testified,  in  substance,  that  he  was 
the  principal  in  the  note,  and  the  defendant  was  only  his 
surety;  that  the  consideration  of  the  note  w?s,  "cotton 
bought  on  time,"  and  that  he  several  times  procured  in- 
dulgences on  the  note,  (not  stating  any  particular  time,) 
without  the  knowledge  or  cousent  of  the  defendant,  by 
paying  usurious  interest.  There  was  other  evidence  iu 
the  case,  but  it  requires  no  particular  notice. 

The  court  charged  the  jury,  at  the  instance  of  the  plain- 
tiff—" 1.  That  if  they  believed,  from  the  evidence,  that 
Lampkin  agreed  with  A.  D.  Cleckley,  the  principal  in  the 
note,  to  postpone  the  day  of  payment  of  said  note;  and 
that  the  consideration  of  said  agreement  was,  usurious  in- 
terest agreed  to  be  paid  by  said  Cleckley,-this  was  not 
such  an  agreement  to  extend  the  day  of  payment  as 
would  discharge  the  surety,  and  they  must  find  for  the 
plaintiff'. 

"2.  That  if  they  believed,  from  the  evidence,  that  there 
was  an  agreement  between  Lampkin  and  Cleckley,  the 
principal,  to  extend  the  day  of  paymeut  of  said  note  after 
its  maturity,  and  that  there  was  no  definite  period  of  ex- 
tension agreed  on,  tlven  the  surety  was  not^discharged, 
and  they  must  find  for  the  plaintiff." 

The  defendant  excepted  to  these  charges,  and  then  re- 
quested the  court  to  give  the  following  charge:    "The 


OF  ALABAMA.  337 


Cox  v.  Moliik'  A:  Girard  Railroad  Company. 
surety  has  a  right  to  stand  upon  the  terms  of  his  con- 
tract; and  it  there  was  an  agreement  entered  into-by 
Lampkin,  while  he  was  the  owner  of  the  note,  with  Cleck- 
ley,  the  principal,  upon  a  Valuable  consideration,  either 
paid,  or  agreed  to  be  paid  by  Cleckley  to  Lampkiu,  to 
^postpone  the  day  of  payment  beyond  that  fixed  by  the 
note,  (no  definite  time  being  agreed  upon,)  without  the 
defendant's  consent,  such  extension  of  payment  dis- 
charged the  defendant,  and  the  jury  must,  in  that  event, 
find  for  the  defendants  The  court  refused  this  charge, 
and  the  defendant  excepted  to  its  refusal. 

The  charges  given  by  the  court,  and  the  refusal  of  the 
charge  asked,  are  now  assigued  as  error. 

Wm.P.  Chilton,  and  Geo.  W.  Gunn,  for  appellant. — 
1.  An  extension  of  the  day  of  payment,  by  agreement 
between  the  creditor  and  the  principal  debtor,  founded 
upon  valuable  consideration,  and  made  without  the  con- 
sent of  the  surety,  discharges  the  surety  from  all  liability, 
irrespective  of  the  length  of  time. — Iladcn  v.  Brown, 
18  Ala.  G41;  McKay  ft  McDonald  v.  Dodge  &  .McKay, 
5  Ala.  388  ;  Rathbone  v.  Rathbone,  10  Johns.  597;  King 
v.  Baldwin,  17  Johns.  384;  7  Hill,  (N.  Y.)  250;  2  Stew. 
63;  Theobald  on  Principal  and  Surety,  118,  123,  181,  184; 
32  N.  II.  560;  23  Barb.  478;  6  Indiana,  128;  43  Maine, 
381. 

2.  An  extension  of  the  day  of  payment,  in  considera- 
tion of  the  payment  of  usurious  interest,  discharges  the 
surety. — Kyle  v.  Bostick,  10  Ala.  58!'. 

CloptoN  &   LlGON,  -1  .To  discharge  the  surety 

by  a  new  contract   between   the  creditor   and  principal 
del. tor,  then  valid  contract,  founded  on  a  val- 

uable consideration,  and  for  a  definite  period  of  time. — 
land  v.  Compton,  80  Miss.  124;  Clark  Co.  v.  Cov- 
ington, 26  MiM.  IT".  1U  1>.  nn.  St.  K.  ■ 
13  III.  34?;  28  M 

2.  An  agreement  to  pay  nsurioc  jnotavalid 

contract. — Kyle  v.    Bostick,  10  Ala.  589;   1  B.  Monroe, 
322;  81  Miss.  664. 


338  SUPREME  COURT 


Cox  v.  Mobile  &  Girard  Railroad  Company. 


R.  W.  WALKER,  J.— [Feb.  1,  1861.]— It  is  Baid  ia 
many  of  the  cases,  that,  to  discharge  a  surety  by  exten- 
sion of  the  time  of  payment,  there  must  not  only  be  a 
sufficient  consideration,  but  the  time  of  the  extension 
must  be  definitely  and  precisely  fixed. — Gardner  v.  Wat- 
son, 13  111.  347;  Parnell  v.  Price,  3  Rich.  L.  121;  Wad- 
lington  v.  Gary,  7  Sm.  &  M.  522;  McGee  v.  Metcalf, 
128m.  &  M.  535;  Freeland  v.  Compton,  30  Miss.  424; 
Miller  v.  Stein,  12  Penn.  St.  383,389;  Alcock  v.  Hill, 
4  Leigh,  022 ;  1  Parsons  Contr.  173 ;  President  of  Police 
Board  v.  Covington,  26  Miss.  470;  Burke  v.  Cruger, 
8  Texas,  6Q ;  Thornton  v.  Dabney,  23  Miss.  550 ;  Miller 
v.  Stern,  2  Barr,  286. 

It  is  undoubtedly  true,  that  a  mere  indulgence,  deter- 
minable at  the  will  of  the  creditor,  will  not  discharge  the 
surety;  and  it  is  to  indulgences  of  this  character,  that 
the  case  just  cited  must  be  held  to  refer. 

The  principle  to  be  extracted  from  the  authorities  is, 
that  where  the  creditor,  upon  sufficient  consideration,  and 
without  the  consent  of  the  surety,  makes  au  agreement 
with  the  principal  debtor,  the  effect  of  which  is  to  post- 
pone the  period  at  which  the  performance  might  have 
been  compelled  in  due  course  of  law — in  other  words,  if, 
by  a  valid  agreement,  the  creditor  precludes  himself  from 
proceeding  against  the  principal,  after  the  debt  is  due, 
according  to  the  terms  of  the  original  contract,  even  for 
a  moment,  the  surety  is  discharged.  And  the  true  ground 
on  which  the  surety  is  relieved  in  such  cases,  is  the  pre- 
sumptive injury  to  him,  arising  from  the  fact  that  such 
an  arrangement  obstructs  his  right  to  pay  up  the  money 
as  soon  as  it  \a  due,  thereby  acquiring  the  power  of  im- 
mediately pursuing  the  debtor,  and  that  it  otherwise  im- 
pairs the  remedies  which  the  surety  may  find  necessary 
fgr  his  protection.  If  the  creditor  has  tied  up  his  hands, 
so  that  he  could  not  himself  immediately  pursue  the  deb- 
tor, then  the  surety  could  not  do  so,  either  on  paying  up 
the  debt,  or  filing  his  bill  quia  timet;  for  he  can  only  be 
substituted  to  such  rights  as  the  creditor  has.— Norris  v. 
Crummey,  2  Rand.  323,  334-38;  Hunter  v.  Jett,  4  Rand. 


OF  ALABAMA.  339 


Cox  v.  Mobile  &  GHrard  Railroad  Company. 


104;  Chichester  v.  Mason,  7  Leigh,  244,  253;  Bangs  v. 
Strong,  7  Hill,  250;  S.  C,  4  Comstock,  315.  325;  Comegys, 
v.  Booth,  3  Stew.  14;  Rathbone  v.  Warren,  10  Johns. 
587;  Addison  Cont.  70,  and  case  cited;  2  Am.  Lead.  Cas. 
176  ;   Draper  v.  Ronicyu,  18  Barb.  169. 

In  Haden  v.  Brown,  (18  Ala.  641,)  it  was  held,  that 
where  there  is  an  agreement,  on  sufficient  consideration, 
postponing  the  day  of  payment  of  a  bill  of  exchange, 
although  it  may  not  be  shown  how  long,  or  to  what  par- 
ticular time,  the  payment  is  agreed  to  be  postponed,  the 
principle  above  stated  applies,  and  operates  the  discharge 
of  the  surety.  In  support  of  this  proposition  the  court 
said:  "It  is  contended,  that  the  plea,  which  was  demur- 
red to,  is  insufficient,  in  as  much  as  it  does  not  show  how 
long,  or  to  what  particular  time,  the  payment  ot  the  bill 
was  agreed  to  be  postponed.  But  we  think  that  this  ob- 
jection cannot  be  sustained.  A  surety  has  the  right  to 
stand  on  the  precise  terms  of  his  contract,  and  is  dis- 
charged, if  those  terms  are  altered  without  his  consent, 
whether  the  alteration  consists  in  the  amount  of  the  ob- 
ligation, or  the  time  or  manner  of  performing  it. — Mc- 
Kay v.  Dodge,  5  Ala.  383 ;  Bang  v.  Strong,  7  Hill,  250. 
Nor  is  it  material,  whether  such  alteration  is  prejudicial 
to  the  surety  or  not.  The  only  question  is,  whether  the 
contract  has  been  changed  without  his  consent;  and  if  it 
fee  found  that  it  has  been,  the  surety  is  discharged;  for, 
never  having  assented  to  the  new  contract  introduced  by 
the  change,  he  is  not  hound  thereby.  Testing  the  plea 
by  this  rule,  we  think  it  is  substantially  good.  It  avers, 
that  for  a  valuable  consideration,  moving  from  the  drawer 
of  the  bill  to  the  plaintiff's  testator,  who  was  the  holder, 
the  day  of  payment  was  postponed.  If  so,  the  contract 
changed,  and  the  def!  ndant  discharged,  unless  he 
nted  to  the  alteration.  It  may  be  true,  that  an  agree- 
ment between  the  principal  debtor  and  the  creditor,  which 

not  stipulate  for1  any  precise1  time,  bat  leaves  the  I 
right  in  the  creditor  I  »r,  or  demand  the  money  due 

by  the  contract,  at  an}'  mora  is  not  work  a  change 

of  the  contract  as  to  the  time  of  payment.     But,  when 


340 SUPREME  COURT 

Cox  v.  Mobile  &.  Girard  Railroad  Company. 

the  day  of  payment  is  postponed  by  an  agreement  found- 
ed on  a  sufficient  consideration,  then  it  cannot  be  said 
that  the  time  of  payment  has  not  been  altered." 

In  the  present  case,  the  time  of  payment  fixed  by  the 
note  itself  was  the  1st  day  of  January,  1851.  By  the 
original  contract,  to  which  the  surety  was  a  party,  the 
creditor  might  have  demanded  payment  on  that  day,  and, 
on  default  of  payment,  might  have  brought  suit  on  the 
note  on  the  next  day.  On  the  facts  supposed  in  the  charge 
which  the  court  was  asked  to  give,  the  creditor,  without 
the  consent  of  the  surety,  and  for  a  valuable  considera- 
tion, made  an  agreement  with  the  principal  debtor, 
whereby  the  day  of  payment  was  postponed  beyond  the 
1st  day  of  January,  1851.  For  a  sufficient  consideration, 
the  creditor  gave  up  his  right  to  demand  payment  on  the 
1st  January,  or  to  institute  suit  on  the  2d.  Under  his 
new  agreement,  he  had  not  the  legal  right  to  do  either 
of  these  things.  It  matters  not  that  no  other  day  of  pay- 
ment was  specifically  agreed  upon  by  the  parties.  By  a 
valid  contract,  the  creditor's  hands  are  tied,  for  at  least 
one  day;  and  it  is  sufficient  for  the  discharge  of  the 
surety,  that  the  creditor  lias,  by  something  obligator}7, 
deprived  himself,  for  a  single  day,  of  the  right  of  de- 
manding payment  and  bringing  suit.  For  as,  under  the 
supposed  contract,  the  creditor  could  not  have  demanded 
payment  on  the  1st  of  January,  or  commenced  suit  on 
the  2d ;  so,  the  surety  could  not,  by  paying  up  the  debt 
on  the  1st,  have  acquired  the  right  of  immediately  pur- 
suing the  debtor.  If  the  agreement  had  been,  that  the 
day  of  payment  of  the  note  should  be  postponed  to 
time  beyond  the  8th  of  January,  1851,  it  would  hardly 
be  contended,  that  the  surety  was  not  discharged,  al- 
though no  other  day  of  payment  was  specifically  fixed 
upon  by  the  parties.  An  agreement,  which  legally  pre- 
vents the  creditor,  for  a  single  day,  from  enforcing  col- 
lection, has,  as  to  the  surety,  the  same  effect  as  a  contract 
which  ties  his  hands  for  seven  days.  In  both  cases,  there 
is  a  binding  contract,  by  which  the  creditor  is  precluded 
from  suing  upon  the  contract,  as  soon  as  he  had  the  right 


OF  ALABAMA.  341 


Cox  v.  Mobilo  &  Girard  Railroad  Company. 


to  do  according  to  its  original  terms. — Draper  v.  Romeyu, 
18  Barb.  1G6.  The  decision,  in  Haden  v.  Brown,  supra, 
appears  to  be  precisely  fn  point;  and,  on  the  authority  of 
that  case,  we  must  hold,  that  the  charge  asked  should 
have  been  given. — See  Dickerson  v.  Board  of  Comms. 
6  Indiana,  128,  134;  Fellows  v.  Prentiss,  3  Denio,  512, 
518,  521;  3  Leading  Cases  in  Eq.  561,  (3d  ed.)  and  cases 
cited;  King  v.  Upton,  4  Greenl.  387;  2  Am.  Law  Reg. 
387. 

[2.]  Merely  giving  further  time  of  payment  to  the 
principal  debtor,  without  the  consent  of  the  surety,  doog 
not  discharge  the  latter:  time  must  be  given  in  pursuance 
of  a  valid  contract  for  that  purpose,  which  tics  the  hands 
of  the  creditor,  so  that  he  cannot  sue  if  he  would.  The 
contract  for  further  time  is  not  valid,  unless  founded  upon 
a  sufficient  legal  consideration.  A  promise,  on  the  part 
of  the  debtor,  to  pay  usury  in  future,  is  an  engagement 
which  the  law  pronounces  utterly  void,  and  is,  conse- 
quently, no  consideration  whatever  for  a  promise  by  the 
creditor  to  give  further  time  of  payment.  Such  a  con- 
tract for  delay,  not  being  binding  on  the  creditor,  does 
not  discharge  the  Bfcrety.  The  first  charge  given  by  the 
court  rests  upon  the  hypothesis,  that  the  consideration  of 
the  agreement  for  delay  was  "  usurious  interest  agreed  t<> 
Repaid  by  Cleckley" — that  is  to  say,  an  executory  under- 
taking on  the  pari  of  the  debtor  to  pay  usury  thereafter. 
That  such  a  contract  does  not  discharge  the  surety,  is 
expressly  decided  in  Kyi.-  v.  Bostick,  10  Ala.  589;  and  to 
the  same  effect  are  Tudor  v.  Goodloe,  1  B.  Mom  322; 
T'yke  v.  Clark,  3  ib.  262;  Bcott  V.Hal], 6  ib.  287;  Roberts 
v.Stewart,  31  Miss.  664;  Vilas  v.  Piercy,  1  Comst.  274, 
and  Standclift  v.  Allen.  14  Ver.  i 
In  Kyle  v.  Bostick,  there   is   a  rficwm,    to   the 

effect  that,  "if  the   money  had   been   in  fact  paid   by 

d  of  a  promise    to   pay    it    merely,  tie'  case 
Would  he  different."— 10  Ala.  695.     The  distinction  | 
luggesti  d,  !    tw<  i  n  mi  executed  and  an  executory  usuri- 
ous contract— between  the  payment  of  usury  in  advance, 
and  a  mere  promise  to  pay  it  in  future — as  a  foundation 


842 SUPREME  COURT 

Smith  v.  Moore. 

for  a  promise  on  the  part  of  the  creditor  to  give  further 
time,  has  been  recognized  and  acted  upon  in  several  cases 
decided  by  the  Kentucky  court  o£  appeals. — Kenningham 
v.  Bedford,  1  B.  Mon.  325;  Pyle  v.  Clark,  3  ib.  262;  Scott 
v.  Hull,  6  ib.  285;  Patton  v.  Shanklin,  14  ib.  15.  See 
2  Am.  Lead.  Cases,  173,  179;  Auderson  v.  Mannon,  7  B. 
Mou.  218;  Duncan  v.  Reed,  8  ib.  382.  While  these  cases 
recognize  the  principle,  that  a  promise  to  pay  usury  at  a 
future  day,  is  no  consideration  for  an  agreement  for  au 
extension  of  time  by  the  creditor,  they  hold  that,  if  the 
usury  is  actually  paid  down  at  the  time  of  the  promise  to 
forbear,  and  as  the  consideration  for  such  promise,  the 
surety  will  be  discharged.  The  soundness  of  this  dis- 
tinction has  been  denied  in  New  York,  and  it  is  there 
held,  that  neither  the  promise  to  pay,  nor  the  actual  pay- 
ment of  usury,  is  a  good  consideration  for  a  promise  by 
the  creditor  to  give  time;  and  that  a  contract  for  delay, 
founded  on  either  the  one  or  the  other,  does  not  bind  the 
creditor,  or  discharge  thesnrety. — Vilasv.  Piercy,  1  Comst. 
274,  28G-7-9.  None  of  the  exceptions  taken  in  this  case 
distinctly  present  the  question  here  alluded  to,  and  we 
will  not  pass  upon  it  at  this  time. 

Judgment  reversed,  and  cause  remanded. 


SMITH  vs.  MOORE. 

|  EQUITABLE    ATTACHMENT.] 


I 


* 

1.  Bequest  l,<  lrusteeyfor  comfort  and  support  of  debtor,  but  not  liable fot 
his  debts,  subject  to  equitable  attachment. — Where  a  sum  of  money  is 
bequeathed  to  a  trustee,  in  trust  for  a  debtor,  4"  not  subject  to  any 
debt  or  debts  he  may  have  contracted,  but  for  his  comfort  and 
support,''  it  may  bo  subjected  by  equitable  attachment  (Code 
§  2956)  to  the  payment  of  his  existing  debts. 


OF  ALABAMA.  343 


Smith  v.  Moore. 


Appeal  from  the  Chancery  Court  of  Macon. 
Heard  before  the  Hon.  James  B.-  Clark. 

The  bill  in  this  case  was  filed  by  Amos  Moore,  against 
"William  G.  Smith  and  Thomas  H.  Smith;  and  sought  to 
subject  to  the  payment  of  a  debt,  due  and  owing  to  the 
complainant  by  said  William  G.  Smith,  a  fund  which  was 
in  the  hands  of  said  Thomas  H.  Smith,  as  trustee  of  said 
"William  G.,  under  the  following  clause  in  the  will  of 
their  deceased  father,  Guy  Smith,  to.- wit :  "I  further  give 
to  my  son  Thomas  H.  Smith,  in  trust  for  my  son  William 
G.  Smith,  the  further  sum  of  thirty-six  hundred  dollars, 
not  subject  to  any  debt  or  debts  he  may  have  contracted, 
but  for. his  comfort  and  support;  and  should  he  depart 
this  life  before  receiving  the  same,  then,  and  in  that  event, 
the  thirty-six  hundred  dollars  to  be  equally  divided  with 
my  other  children  in  life;  and  if  any  should  be  dead, 
their  share  to  their  child  or  children."  The  testator's 
will  was  executed  in  Georgia,  where  he  resided;  and  was 
duly  admitted  to  probate  there,  after  his  death,  in  July, 
1857.  The  complainant's  debt  against  William  G.  Smith 
was  evidenced  by  a  promissory  note,  dated  the  14th  April, 
1852,  and  payable  on  the  1st  November  next  after  date. 
The  fund  sought  to  be  reached  was  paid  over  to  Thomas 
H.  Smith  by  the  administrator  in  Georgia,  and  was  in  his 
hands  at  the  commencement  of  the  suit.  The  prayer  of 
the  bill  was  for  an  equitable  attachment,  an  account,  and 
general  relief.  A  decree  pro  confesso  was  entered  against 
William  G.  Smith,  on  publication  duly  perfected  against 
him  as  a  non-resident.  Thomas  H.  Smith  answered,  ad- 
mitting the  material  allegations  of  the  bill;  but  insisting 
that  neither  the  principal  nor  the  interest  of  the  fund  in 
his  hands  was  liable  to  the  Complainant's  demand,  and 
demurring  to  the  bill  for  want  of  equity.  On  final  hear- 
ing, on  pleading-  and  proof,  the  chancellor  held,  that  the 
entire  fund,  both  principal  and  interest,  or  as  much  there- 
of as  was  necessary,  was  liable  to  complainant's  debt. 
He  therefore  overruled  the  demurrer,  and  rendered  a  de- 


344  SUPREME  COURT 

Smith  v.  Moore. 


crce  for  the  complainant;  and  his  decree  is  now  assigned 

as  error. 

Clopton  k  Ligon,  for  appellant. — 1.  If  William 
Smith  was  entitled  to  the  possession  of  the  money,  and 
could  sue  for  and  recover  the  same  from  the  trustee,  (as 
the  chancellor  held,)  theu  the  complainant  had  a  full, 
complete,  and  adequate  remedy  at  law,  by  attachment 
and  garnishment. — Hall  v.  Magee,  27  Ala.  410;  Ilarrell 
v.  Whitman,  1!»  Ala.  135.  Such  a  construction,  however, 
would  render  the  trustee  a  mere  conduit,  through  which 
the  money  was  to  pass  from  the  executor  to  William  Q> 
Smith;  and  his  appointment  would  be  a  useless  and  nu- 
gatory act.  On  the  contrary,  the  interposition  of  the 
trustee  was  necessary,  to  receive  the  fund,  to  apply  the 
income  arising  from  it  to  the  comfort  and  support  of  the 
legatee,  and  to  preserve  the  fund  for  the  contingent  re- 
mainder-men ;  and  his  title  does  not  cease,  until  these 
objects  arc  fully  accomplished. — Comby  v.  McMichael, 
19  Ala.  747. 

2.  The  broad  doctrine  was  at  one  time  maintained  in 
England,  that  every  right  to  property,  both  legal  and 
equitable,  must  be  subject  to  the  incidents  of  property — 
alienation,  and  the  payment  of  debts ;  and  this  was  put 
upon  the  ground,  that  it  was  against  public  policy,  and  a 
fraud  on  creditors,  to  allow  property  to  be  held  by  a 
debtor,  or  in  trust  for  his  use  and  benefit,  without  being 
liable  to  the  payment  of  his  debts.  But  modern  decisions 
in  England,  and  more  particularly  in  America,  have 
greatly  restricted  and  qualified  this  doctrine;  and  the 
principles  upon  which  these  later  cases  rest,  commend 
themselves  by  their  correct  reasoning,  and  by  their  en- 
lightened views  of  public  policy.  No  principle  of  public 
policy  is  contravened,  by  a  father,  while  living,  support- 
ing an  indigent  or  an  improvident  child ;  and  it  is  ditticult 
to  see  what  principle  forbids  that,  after  his  death,  his 
bounty  should  be  expended  in  the  same  way,  through 
the  agency  of  an  executor  or  trustee..  Creditors  have  no 
claim  on  the  father  or  testator,  and  their  rights  are  not 


OF  ALABAMA.  345 


Smith  v.  Moore- 


prejudiced  by  his  bounty  to  their  debtor:  on  the  contrary, 
they  may  be  greatly  benefited  thereby.  These  views  are 
elaborated,  and  maintained  by  unanswerable  argumeuts, 
in  Hill  and  Wife  v.  McRac,  27  Ala.  182;  and  in  Braman 
v.  Stiles,  2  Pick.  463.  An  examination  of  the  more 
modern  leading  eases,  both  in  England  and  in  America, 
will  show,  that  wherever  a  right  in  the  property  itself,  or 
its  proceeds,  is  vested  in  the  lebtor,  the  same  is  subject 
to  his  debts;  but  that  the  words,  "support  and  mainte- 
nance,"] "comfort  and  support,"  &c,  do  not  vest  such  an 
interest  in  him  as  --an  lie  resetted  by  his  creditors. — Two- 
penny v.  Peyton,  10  Sim.  487;  Godden  v.  Crowhurst,  ib. 
642;  Stagg  v.  Beckman,  2  Edw.  Ch.  89;  Ashurst  v.  Given, 
5  Watts  cv.  Serg.  323  ;  Vaux  v.  Park,  7  Watts  &  Serg.  19; 
Fisher  v.  Taylor.  2  Hawle,  33;  Norris  v.  Johnson,  5  Barr, 
289;  Eyrick  v.  Iletrick,  13  Penn.  491;  Pope  v.  Elliott, 
8B.  Mmi.  56;  2  Ueavan,  63j  18  Vesey,  429;  5  Paige, 
583.  In  this  ease,  besides  violating  these  general  prin- 
ciples, thechancellor'i  decree  operates  to  defeat  the  rights 
of  the  contingent  remainder-men. — Williamson  v.  Mason, 
23  Ala.  503;   Elmore  v.  Mustiu,  28  Ala.  313. 

X.  S.  Graham,  centra,  cited  Hugely  k  Harrison  v.  Rob- 
inson, 10  Ala.  731;  Robertson  &  Pettibone  v.  Johnston, 
36  Ala.  P»7,  and  the  authorities  therein  cited. 

A.  J.  WALKER,   C.   J.— [Jan.  29,  1801.]— It  is  clear" 
that  the  intended  to  make  the  specified  fund  tree 

fr^in  liability  to  the  debts  of  Win.  G.  Smith ;  and  it  is 
almost  equally  char,  that  the  law  forbids  the  accomplish- 
tnent  of  the  purpose.  The  fond  itself,  not  merely  the 
interest,  ia  devoted  to  the  "comfort  and  support"  of  the- 
cestui  que  trust.  This  is  net  only  the  necessary  effect,  of 
the  terms,  in  which  the  gift  of  the  fund,  in  trust  for  his 
Comfort  and  support,  is  made;  but  it  is  clearly  implied 
from  the  making  his  death,  without  receiving  the  fund, 
the  upon  which  the  limitation  over  depe 

The  fund  is  not  given  to  the  trustees,  to  enable  them  to 
support  the  the  money   itself  is  given  in 

23 


346 SUPREME  COTJRT 

Smith  v.  Moore. 

trust  for  Win.  G.,  for  his  comfort  and  support;  ami  he 
has,  undoubtedly,  the  right  to-  receive  for  his  comfort  an  J 
support  the  entire  fond,  with  its  accumulations,  if  neces- 
sary. Can  it  be  that  a  fund,  from  which  one  lias  thus  a 
right  to  draw  for  his  comfort  and  snppor5  until  it  is  ex- 
hausted, is  exempt  from  all  liability  to  hi9  debts? 

We  shall  not  deny,  that  decisions  made  in  Pennsylva- 
nia go  to  the  extent  of  holding  property  th?is  situated 
free  from  liability  to  debts.— -7  W.  &  S.  19;  Ashurst  v. 
Given,  5  W.  &  S.  323;  Norris  v.  Johnston,  5  Barr,  287; 
Holdship  v.  Patterson,  7  Watts,  547;  Fisher  v.  Taylor, 
2  Rawle,  33;  Eryck  v.  Hetrick,  1  Har.  488.  And  a  case 
in  Kentucky,  and  another  in  Massachusetts,  go  very 
far  in  the  same  direction. — Pope  v.  Elliott,  8  B.  Mon.56;. 
Braman  v.  Styles,  2  Pick.  4S0.  But  the  Pennsylvania 
decisions  make  a  palpable  innovation  upon  the  law  ae 
long  established  in  the  English*  court  of  chancery,  and 
it  is  so  avowed  by  the  opinion  in  Norris  v.  Johnston, 
'supra. — 1  White  k  Tudor's  Leading  Cases  in  Eq,  544; 
Notes  of  Hare  and  Wallace  to  Hulme  v.  Tenant. 

The  English  doctrine  "forbids  the  disposition  of  prop- 
erty, divested  of  its  legal  incidents"  of  liability  to  debts, 
and  susceptibility  of  alienation. — 1  Jar.  on  Wills,  810; 
Hill  on  Trustees,  395.  And  under  the  operation  of  that 
doctrine,  a  liability  to  debts,  to  the  extent  of  the  debtor's 
interest,  baa  been  enforced,  in  the  cases  following,  to-wit: 
Where  the  dividends  were  directed  to  be  paid  into  the 
proper  hands  of  a  man,  or  on  his  own  proper  order  or  re- 
ceipt, and  not  to  be  assignable  by  way  of  anticipation, 
(Brandon  v.  Robinson,  18  Ves.  429;)  where  an  annuity 
was  given  in  trust  for  the  maintenance  and  support  of 
the  cestui  >/"<•  trust,  not  to  be  liable  to  his  debts,  and  to  be 
paid,  from  time  to  time,  into  his  proper  hands,  and  not 
to  any  other  person,  (Graves  v.  Dolphin,  1  Sim.  66;)  where 
an  annuity  was  bequeathed  intrust,  with  directions  for  the 
payment  of  dividends  for  the  sole  purpose  of  the  main- 
tenance and  support  of  the  legatee  and  his  family,  and 
with  a  prohibition  of  alienation  and  liability  to  debts, 
(Yarnold    v.  Moorhouse,    1  Russ.   &  My],  364;)  where 


OF  ALABAMA. 347 

Smith  v.  Moore. 


property  wits  held  in  trust,  to  be  Applied  In  such  manner, 
and  to  such  persons,  for  the  board,  lodging,  and  subsis- 
tence of  the  donee  and  his  family,  as  the  trustees  should 
think  proper,  (Rippon  v.  Norton,  2  Beav.  (34;')  where 
there  was  an  assignment  to  trustees  of  a  fund  in  trust  du- 
ring the  life  of  II,  or  such  part  thereof  as  they  should 
think  proper,  and  at  their  will  and  pleasure,  and  at  such 
times  and  in  such  sums  as  they  should  deem  expedient, 
to  pay  the  interest  to  him,  or,  at  their  discretion,  to  ex- 
pend the  interest  in  procuring  for  him  diet,  lodging,  wear- 
ing apparel,  and  other  necessaries,  so  that  the  same  should 
not  be  subject  to  his  debts  or  disposition,  (Snowden  v. 
Bales,  b'  Sim.  624;)  and,  lastly,  where  property  was  con- 
veyed to  trustees,  to  pay  and  apply  the  rents  and  profits 
to  the  support  of  J,  his  wife  and  children,  with  a  prohi- 
bition against  any  charge,  or  assignment,  or  anticipation 
by  J. 

It  is  difficult  to  reconcile  the  two  cases  of  Twopenny  v. 
Peyton,  (10  Mm.  487,)  and  Goddeu  v.  Crowhurst,  (ib. 
642,)  with  the  other  English  decisions,  or  with  the  propo- 
sition, that  the  cestui  que  trust  in  this  case  has  an  interest 
liable  to  his  debts.  We  refer  to  the  discussion  of  those 
two  cases  by  Judges  Ormond  and  Goldthwaite,  in  Hugely 
&  Harrisou  v.  Robinson,  (10  Ala.  702,)  where  an  attempt 
has  been  made  to  place  them  in  harmony  with  the  other 
decisions. — S  .  Hill  on  Trustees,  395,  note  x.     In. 

Yoiuiglinshanfl  v.  Gisbome,  ^1  Col.  400,)  there  was  a 
trust  for  tie'  personal  support,  clothing,  and  maintenance, 
with  u  provision  that  the  fund  should  not  be  subject  to 
the  debts  of  the  cestui  que  UruSt  The  fund  was  held  sub- 
ject to  pase  to  the  assignees  uuder  the  insolvent  debtors' 
act;  and   the   vice-chancellor,  in  commenting   upon  the 

-  of  Twopenny  v.  Peyton  and  Goddeu  v.  Crowhurst, 
said,  that  it  tiny  were  not  distinguishable  from  the  case 
before  him,  he  "must  respectfully  distent  from  them."  So, 
too,  we  sxy,  thatH  they  are  not  distinguishable  from  this 

.  they  are  at  war  with  all  the  other  English  decisions, 
and  with  a  principle  well  established  in  the  English  law, 
and  we   must  respectfully  dissent  from  them.     The  au- 


848  SUPREME  COURT 


Smith  v.  Moore. 


thorities,  which  we  have  collated,  most  conclusively  show, 
that  the  established  doctrine  in  the  English  chancery 
docs  not  permit  any  other  conclusion,  than  that  the  fund 
in  the  hands  of  Thomas  IT.  Smith  is  liable  to  the  debts  of 
Wmi  G.  Smith; 

The  decision  in  Hill  and  Wife  v.  McRae,  (27  Ala.  175,) 
when  considered  in  its  entirety,  and  not  in  reference  to 
any  single  sentence,  does  not  support  the  position,  that 
in  this  case  the  trust  fund  enjoys  any  immunity  from 
liability  to  debts.  It  is  in  reference  to  a  bequest  of 
property  to  be  held  in  trust  for  the  support  of  a  man  and 
his  wife  and  children;  and  the  decision  is  placed  upon 
the  ground,  that  the  interest  of  the  debtor  was  so  blended 
with  that  of  the  wife  and  children,  that  the  former  could 
not  be  separated  and  subjected  to  debts  without  detri- 
ment to  the  latter.  And  the  same  doctrine  seems  to  have 
been  recognized'in  the  opinions  in  Rugely  &  Harrison  v. 
Robinson,  10  Ala.  702.  See,  also,  Fellows,  Wadsworth 
&  Co.  v.  Tann,  9  Ala.  999;  Spear  v.  Walkley,  10  Ala. 
328.     , 

The  precise  question  of  this  case  seems  to  have  been 
involved  in  the  case  ol  Clark  v.  Windham,  (12  Ala.  798,) 
and  it  is  not  a  strained  inference,  that  an  adjudication  of 
it  adversely  to  the  appellants  is  implied  in  that  decision. 
In  the  ease  of  Robertson  &  Pettibone  v.  Johnston,  (30  Ala. 
197,)  we  endorsed  the  doctrine  declared  by  Judge  Or- 
mond  in  Rugely  &  Harrison  v.  Robinson — "that  a  bene- 
ficial interest  cannot  be  given  to  one,  so  that  it  cannot  be 
reached  by  his  creditors,  unless  such  interest  is  conferred, 
and  re  to  be  enjoyed  jointly  with  others,  and  i3  also  inca- 
pable of  severance.'"  We  but  carry  out  that  doctrine, 
and  follow  the  lead  of  our  former  decisions,  in  declaring 
that  the  fund  held  in  trust  tor  William  G.Smith  is  liable 
to  his  debts. 

We  think  Wm.  G.  Smith's  right  to  the  fund  was  equi- 
table, and  was  liable  to  attachment  in  equity  under  sec- 
tion 2956  of  the  Code.— You  v.  Flinn,  34  Ala.  409. 

Affirmed. 


OF  ALABAMA. 34g 


Webb  v.  Keliy. 


WEBB  vs.  KELLY. 

[detinue  fou  slave.] 

1.  General  objection  to  evidence — A  general  objection   to  evidence,  a 
part  of  which  is  legal,  may  be  overruled  entirely. 

2.  Admissibility  of  declarations  an  part  of  res  gestec — The  declarations 
of  the  vendor  ol  a  slave,  made  "a  few  days  after  the  sale,"  to  the 
effect  that,  if  he  had  known  that  the  slave  was  not  going  to  T 
(whither  the  purchaser  had  represented  that  he  intended  to  carry 
him,)  he  would  not  have  sold  him,  are  not  evidence  for  the  decla- 
rant, as  a  part  of  the  res  gestre,  in  a  suit  involving  the  validity  of 
the  sale. 

5.  .1  I  :i  tibilitij  of  record  as  evidence  in  another  suit.  —  In  detinue  for  a 
slave,  brought  by  the  vendor  agunst  the  purchaser, — the  material 
inquiry  being,  whether  the  purchase-money  was  furnished  by  the 
defendant,  or  by  the  slave  himself:  and  the  defendant,  for  the 
purpose  of  showing  that  the  plaintiff,  before  the  sale,  "  knew  that 
the  slave  had  money,  and  permitted  him  to  have,  use  and  dispose 
of  it  as  lie  pleased,"  having  read  in  evidence  a  receipt,  by  which 
the  plaintiff  acknowledged  to  have  received  a  sum  of  money,  for 

-keeping,  from  the  slave  and  his  mother, — the  record  of  a  suit 
institute  1  by  the  defendant,  after  the  sab',  in  the  nameof  the  owner 
of  the  slave's  nv  ther,  i^but  without  hisauthority  or  knowledge,  and 
aft  i  rwards  dismissed  by  him,)  for  the  recovery  of  this  money  from 
the  plaintiff,  is  not  competent  evidence  for  the  plaintiff,  "  to  ejq  lain 
said  receipt,  and  to  show  that  the  defendant'regarded  the  money 
as  b<  to  the  slave's  mother." 

4.  /'.  witness,  and duppnession  of  deposition.  - 

ble,  that  the  act   "to  compel  the  personal  attendance  of  wit? 
in  civil  i  d  A.i  ts  1857  8,  p.  C4,)  does  not  apply  to  awit- 

who  is  confined  in  jail  under  a  judicial  sentence;  but,  if  the 
proper  affidavit  has  been  made,  and  the  attendance  of  the  v. 
can  be  procured, the  deposition  ought  to  be  suppressed. 

5-  ReU  i  uninat  ion  as  witness. — The 

ty  '>n  a  detinue  Don  I  in  iy  1>  ■  wit- 

for  Ins  principal,  on  the  execution  bf  the  latter  of  a  new 
bond,  wif  lent  sureties ;  but  it  is  n 

une  from  the  bond,  against  the  objeq- 

of  the  ob  ate  the  name  of  another  sin. 

•  •ad. 

6.  Master's  right  to   money  acquired  by  slave;  of  contrast 
d.tve.—U  the  mastes   knowingly  permits  hia  slave  to  ac- 


850    SUPREME  OOtTRT 

Webb  v.  Kelly. 


quire  money,  and  to  pay  it  out  to  a  third  person,  in  a  fair  business 
transaction,  lie  cannot  afterwards  reclaim  it;  but.  if  such  third 
on  receives  and  holds  the  money  for  the  benefit  of  the  slave, 
aiid  as  his  bailee,  and  it  is  afterwards  used,  without  the  knowledge 
of  the  master,  in  purchasing  the  sine  for  himself  from  the  master, 
the  contract  is  void,  and  does  not  divest  the  title  of  the  master. 

Appual  from  the  City  Court  of  Mobile. 
Tried  before  the  Hon.  Alex.  McKinstry. 

This  action  was  brought  by  James  Kelly,  against  John 
T.  Webb,  to  recover  a  slave  named  Wash,  under  the  fol- 
lowing circumstances:  The  slave  belonged  to  the  plain- 
tift,  and  was  employed  by  him  as  a  cab-driver  in  the  city 
of  Mobile,  butt  was  permitted  to  retain  for  himself  about 
one-half  of  his  wages.  The  defendant  procured  one 
Williams  to  negotiate  with  plaintiff  for  the  sale  of  the 
slave:  the  plaintiff  sold  him  to  Williams,  on  the  16th 
July,  1857,  for  one  thousand  dollars,  and  executed  to 
William  a  bill  of  sale,  with  warranty  of  title  and  sound- 
ness; and,  oo  the  next  day,  Williams  executed  a  similar 
bill  of  sale  to  A.  Brooks,  who  then  paid  over  the  pur- 
chase-money to  the  plaintiff.  A  part  of  the  purchase- 
money  was  paid  by  the  draft  of  one  Landermilk  for  $500, 
which  he  had  given  to  the  slave  for  borro wed  money;  and 
the  defendant's  evidence  tended  to  show  that  he  had  him- 
self furnished  a  portion  of  the  residue.  The  plaintiff 
contended,  that  the  purchase  by  Williams  was  made,  at 
the  instigation  of  the  defendant,  under  an  agreement  bo- 
tweon  him  :md  the  slave  that  the  purchase  should  enure 
to  the  benefit  of  the  slave,  and  that  the  money  was  in 
fact  furnished  by  the  slave.  Williams  testified,  that  he 
had  no  interest  whatever  in  the  slave,  and  that  he  made 
the  purchase  for,  and  at  the  instance  of  the  defendant. 
Brooks  testified,  "that  he  never  had  or  claimed  any  title 
to  the  slave,  and  never  paid  any  of  his  own  money  tor 
him;  but  that  the  title  was  made  to  him  to  oblige  the 
defendant,  who  did  not  want  to  be  known  in  the  trans- 
action, and  who  brought  the  money  to  him."  During 
the  negotiations  between  the  plaintiff  and  Williams,  the 


OF  ALABAMA.  351 


Webb  v.  Kelly. 


latter  represented,  "that  he  lived  in  Texas,  where  the 
slave  iiad  relatives,  and  intended  to  leave  for  Texas,  with 
the  slave,  so  soon  as  the  purchase  was  concluded."  A 
witness  for  the  plaintiff,  stated,  "that  he  heard  plaintiff 
say,  a  few  days  after  the  sale,  that  he  would  not  have 
sold  Wash,  if  he  had  known  that  he  was  not  going  to 
Texas,  where  he  had  kin."  The  court  admitted  this 
statement  as  evidence,  as  a  part  of  the  res  (jcstcc,  against, 
the  defendant's  objection;  to  which  the  defendant  re- 
served an  exception. 

Before  the  trial  commenced,  the  defendant  moved  the 
court  to  suppress  the  deposition  of  one  Mary  Lebonte, 
which  had  been  taken  on  interrogatories  and  cross-inter- 
rogatories while  the  witness  was  in  jail  under  a  judicial 
sentence;  and  stated  to  the  court,  "that  he  had  made  the 
statutory  affidavit  to  procure  the  personal  attendance  of 
said  witness,  (Acts  1857-8,  p.  34,)  and  that  she  was  then 
present  in  the  court-house,  under  the  order  ot  the  court." 
The  court  refused  to  suppress  the  deposition,  "on  the 
ground  that  the  statute  did  not  apply  to  witnesses  who 
were  in  jail,  under  judicial  sentence,  for  an  offense  against 
the  crimita!  laws;"  but  gave  leave  to  the  defendant  to 
put  the  witness  on  the  stand  as  his  own  witness,  if  he 
■desired  to  do  so.  The  defendant  declined  to"  introduce 
the  witneai  as  his  own,  and  reserved  an  exception  to  .the 

ruling  of  his  motion  to  suppress  the  deposition. 
Daring  the  trial,  when  die  deposition  of  this  witness  was 
offered  in  evidence  to  the  jury,  the  defendant  moved  the 
court  to  suppress  the  answer  to  the  fourth  interrogatory, 
which  was  in  theee  word-:  "Wash  pretended  to  be  lame, 
in  order  that  be  might  induce  Mr.  Kelly  to  sell  him.  I 
heard  him  say  that  this  was  his  object.  It  was  a 
acre  pretense:  be  •«  not  lame.  When  he  law  Mr. 
Kelly  or  hii  friends,  he  would  make  out  that  he  was  lame. 
In  the  house,  whenever  I  -aw  him,  he  walked  straight. 
II'-  Iced  of  how  he  was  tryii.- _•  Mr.  Kelly." 

ground   of  objection   to  this  answer   was  specified. 

court  refused  to  exclude  it,  and  the  defendant  ex- 
cepted. 


SUPRKMF,  COURT . 

Webb  v.  Kelly. 

The  defendant  had  proved,  that  the  plaintiff,  prior  to 
the  sale  to  Williams,  permitted  the  slave  to  retain  a  great 
part  of  his  earnings,  to  employ  eonsel  to  defend  himself, 
when  prosecuted  for  an  infraction  of  the  city  laws,  &c. ; 
and,  "for  the  purpose  of  showing  that  theplaintift  knew, 
before  said  sale,  that  the  slave  had  money,  and  permitted 
him  to  have,  use  and  dispose  of  it  as  he  pleased,"  had 
read  in  evidence  a  receipt,  signed  by  plaintiff,  in  these 
words:  "Received  from  boy  Wash  and  his  mother,  Cla- 
rissa, four  hundred  dollars,  for  safe-keeping;"  on  which 
were  endorsed  these  words:  "Paid  on  the  within,  two 
hundred  dollars."  "  To  explain  said  receipt,  and  to  show 
that  the  defendant  regarded  the  money  as  belonging  to 
said  Clarissa,"  the  plain tilf  offered  in  evidence  the  record 
of  a  suit,  instituted  against  him,  after  the  sale,  in  the 
name  of  one  Wiley,  (who  was  the  owner  of  Clarissa,)  for 
the  recovery  of  the  money  specified  in  the  receipt;  ac- 
companied with  the  parol  testimony  of  said  Wiley,  to 
the  effect  that  said  suit  was  instituted  by  the  defendant, 
without  his  authority  or  knowledge,  and  was  dismissed 
by  him,  at  the  defendant's  cost,  before  trial.  The  de- 
fendant objected  to  the  admission  of  this  record  as  evi- 
dence, on  the  ground  that  it  was  irrelevant;  the  court 
overruled  his  objection,  and  he  excepted. 

Qn  the  institution  of  the  suit,  the  defendant  having 
failed  to  give  the  statutory  bond  for  the  forthcoming  of 
the  slave,  the  plaintiff  gave  bond,  with  W.  C.  Wright 
and  T.  II.  Robinson  as  his  sureties;  and  the  possession  of 
the  slave  was  delivered  to  him  Iry  the  sheriff.  During 
the  trial,  the  court  allowed  the  plaintiff,  against  the  de- 
fendant's objection,  to  erase  the  name  of  Robinson  from 
the  bond,  and  to  substitute  the  name  of  one  Masterson  in 
its  stead,  in  onbr  that  he  might  examine  Robinson  as  a 
witness;  to  which  action  of  the  court  the  defendant  re- 
served an  exception. 

The  defendant  requested  the  court  to  instruct  the  jury, 
"that  if  they  believed,  from  the  evidence,  that  the  plain- 
tiff permitted  the  slave  Wash  to  retain  a  part  of  his  earn- 
ings for  himself,  and  to  use  and  dispose  of  the  money  he 


OF  ALABAMA.  358 


Webb  v.  Kelly. 


was  thus  permitted  to  acquire  as  he  pleased ;.  and  that 
"Wash,  in  the  absence  of  a  revocation  of  this  consent, 
afterwards  loaned  the  money  thus  acquired  to  Lander- 
milk,  and  it  was  used  by  Williams  in  the  purchase  of 
Wash,  then  the  plaintiff  would  have  no  right  to  reclaim 
the  mouey  so  acquired,  used,  and  disposed  of  by  Wash." 
The  court  refused  to  give  this  charge,  and  the  defendant 
excepted  to  its  refusal. 

All  the  rulings  of  the  court  to  which,  as  above  stated, 
exceptions  were  reserved,  are  now  assigned  as  error. 

Smith  &  Chandler,  for  appellant. — 1.  The  deposition 
of  the  witness  Lebonte  ought  to  have  been  suppressed, 
and  the  witness  examined  personally  on  the  stand.  The 
general  policy  of  the  law  requires,  that  witnesses  should 
be  examined  orally,  in  open  court,  whenever  it  can  be- 
done.  The  act  of  1858  is  very  comprehensive  in  its 
language,  and  does  not  exempt  from  its  operation  wit- 
■s  who  arc  confined  in  jail ;  nor  does  any  reason,  or 
principle  of  public  policy,  demand  that  they  should  be 
excepted.  Even  if  the  act  did  not  apply,  it  was  the  duty 
of  the  court  to  suppress  the  deposition,  when  it  was  made 
to  appear  that  the  witness  was  in  fact  present  iu  court. 

2.  The  answer  of  this  witness  to  the  fourth  interroga- 
tory, consisting  of  the  declarations  of  the  slave,  was  not 
competent  evidence  against  the  defendant. — Mautdin  & 
Terrell  v.  Mitchell,  14  Ala.  814.. 

3.  The  declarations  of  the  plaintiff,  made  several  days 
after  the  sale,  constituted  no  part  of  the  res  r/.  *///:,  and 
were  not  nia<lcin  the  presence  of  either  Williams  <>r  the 
defendant  A  party  cannot  be  permitted  thus  to  manu- 
facture evidence  for  himself. — Hooper  v.  Kdwards,  20  Ala. 
530;  6  Ala. 735;  3  Conn.  250]  2  J.  .1.  Mar.  880;  L5  Barb. 

4.  The  court  erred  in  permitting  the  plaintiff  to  erase 
the  name  of  I.  in  from  the  bond,  and  to  substitute 
the  name  of  M  in  in  its  -tend.  This  eff  i  ma- 
terial alteration  of  the  bond,  which  rendered  it  void  as  to 
the  other  surety;  ami  the  rights  of  the  obligee  cannot  be 


354  SUPREME  COURT 


Webb  v.  Kelly. 


thus  impaired  or  destroyed,  against  his  consent.     A  new 
bond  ought  to  have  been  executed  and  tendered. 

5.  The  record  of  the  suit  of  Wiley  against  Kelly  was 
not  relevant  to  any  issue  in  the  case,  while  it  contained 
evidence  which  was  calculated  to  injure  the  defendant 
before  the  jury. 

6.  The  charge  asked  and  refused,  ought  to  have  been 
given.  It  was  proved,  that  plaintiff,  permitted  the  slave 
to  retain  and  dispose  of  a  part  of  his  earnings  as  he 
pleased,  knew  that  he  had  money,  and  authorized  Lan- 
dermilk  to  borrow  money  from  him  ;  and  that  the  money 
so  borrowed  b}r  Landermilk  was  used  in  the  purchase  by 
"Williams.  On  these  facts,  he  had  no  right  to  reclaim  the 
money. — Shanklin  v.  Johnson,  9  Ala.  270  ;  Jones  v.  Nird- 
linger,  20  Ala.  490  ;  28  Ala.  520.  If  he  had  the  right,  at 
his  election,  to  rescind  the  contract,  and  recover  the  slave, 
he  ought  first  to  have  returned  the  money  advanced  by 
the  defendant.— 13  Barbour,  645;  2  Hill,  288  ;  1  Denio, 
74;  1  Me  teal  f,  550. 

F.  S.  Blount,  and  G.  Y.  Overall,  contra.—  1.  The  act 
of  1858,  to  compel  the  personal  attendance  of  witnesses, 
has  no  application  to  persons  who  are  in  jail  under  sen- 
tence of  the  law ;  nor  had  the  defendant  complied  with 
its  requisitions,  to  procure  the  attendance  ot  the  witness. 
If  he  was  injured  by  the  refusal  of  the  court  to  suppress 
the  deposition,  he  might  have  examined  the  witness  orally, 
as  the  court  gave  him  permission  to  do. 

2.  The  answer  of  the  witness  Lebonte  to  the  fourth  in- 
terrogatory contained  some  legal  evidence,  while  the  ob- 
jection to  it  was  general. — Bigelow  v.  Ward,  29  Ala.  471; 
Shepherd's  Digest,  59(3,  and  authorities  there  cited. 

3.  The  declarations  of  the  plaintiff  were  admissible,  as 
a  part  of  the  res  gcskr ;  and  even  if  there  was  error  in 
their  admission,  the  error  worked  no  injury,  since  the 
evidence  could  not  have  affected  the  issue  before  the 
jury. 

4.  The  plaintiff  had  a  right  to  examine  Robinson  as  a 
witness,  and   to  substitute  a  new  surety  in  his  stead.  -  - 


OF  ALABAMA.  355 


Webb  v.  Kelly. 


5   8m.    &   Mar.    238;  3   Cowen,  251;  3  Wendell,   376; 

8  Johns.  308. 

5.  It  wus  certainly  competent  for  the  plaintiff  to  ex- 
plain the  receipt  which  the  defendant  had  read  in  evi- 
dence, and  to  show  that  the  defendant  himself  had  treated 
the  money,  therein  mentioned,  as  belonging  to  Clarissa; 
and  the  record  was  admissible  evidence  for  that  purpose. 

6.  If  the  money  paid  by  Brooks  to  Kelly,  or  any  part 
of  it,  was  furnished  by  the  slave,  and  that  fact  was  not 
known  at  the  time  by  Kelly,  the  sale  was  a  nullity,  and 
Kelly's  title  to  the  slave  was  never  divested.  So  long  as 
the  money  remained  in  the  possession  of  the  slave,  or  was 
held  in  trust  tor  him,  the  master  had  a  right  to  reclaim  it. 

9  Ala.  271  ;  20  Ala.  490  ;  28  Ala.  514.     The  sale  was  void, 
for  fraud,  ami  for  want  of  consideration. — 15  Mass.  156; 

10  N.  II.  477;  14  Barbour,  594;  Cro.  Ella.  199;  1  Bing. 
N.  C.  534;  6  x\.  II.  225;  Cbitty  on  Contracts,  589. 

STONE,  J. —[Feb.  26,  1861.]— In  the  answer  of  the 
Witness  Mary  Lehoute  to  the  4th  interrogatory,  are  some 
statements  of  fact,  which  are  clearly  legal  evidence. 
The  objection  of  the  appellant  was  general,  to  the  wlole 
answer.  Under  these  circumstances,  the  court  did  not  err 
in  overruling  the  objection. — Shep.  Dig.  696,  §  L69. 

[2.]  In  admitting,  as  evidence  for  plaintiff,  what 
he  had  himself  said  a  few  days  after  the  sale,  the  city 
court  erred*  This  was  do  part  of  the  res  gestae,  and 
Mr.  Kelly  could  not  make  evidence  for  himself. — Shep. 
Dig.  •  wcombe  v.  Leavitt,  -11  Ala.  I 

[."..]  Wcdoii.it  know  any  principle  on  which  the  re- 
cord of  the  -'lit  I  arid  Kelly  could  be  evi- 
dence for  mate  purpose  in  this  trial.  It  was, 
irrele  i  not  po  shed  any  light  on  the 
main  subject  <>f  contest,  namely,  whose  money  was  osed 
in  the  purchase  <>f  ti  Waehl  The  court  erred  in 
admitting  the 

(  l»]  The  question  of  the  duty  of  the  city  court  to  sup- 
|      -  the  '1  the  witness  Mary  Lehoute,  and 

to  bring  her  personally  before  the  court,  will  prolfably  not 


356  SUPREME  COURT 


Webb  v.  Kelly. 


again  arise  in  its  present  form.  It  is  probably  true,  that 
a  witness,  confined  in  prison  under  sentence  of  the  law,  is 
not  within  the  spirit  of  the  statute;  but  when  the  proper 
affidavit  is  made,  and  the  attendance  of  the  witness  can 
be  procured,  the  deposition  should  be  suppressed. — Acts 
1857-8,  p.  34 

[5.J  In  the  form  in  which  the  attempt  was  made  to 
render  Mr.  Robinson  a  competent  witness  for  Mr.  Kelly, 
the  city  court  also  erred.  It  was  not  permissible  to  erase 
Mr.  Robinson's  name  from  the  bond,  and  supply  his  place 
with  another  surety.  A  new  and  sufficient  bond  should 
have  been  executed  and  approved,  before  any  action  of  the 
court  should  have  been  had,  exonerating  Robinson  as  a 
surety.  Tendering  such  good  and  sufficient  surety,  and 
executing  a  proper  bond,  Mr.  Kelly  had  the  right  to  ask 
that  his  former  surety  be  discharged,  that  he  might  testify 
ae  a  witness  for  him. — Taylor  v.  Branch  Bank  at  Hunts- 
ville,  14  Ala.  633;  Driukwater  v.  Holliday,  11  Ala.  134. 

[6.]  We  think  the  charge  asked  and  refused,  misappre- 
hends the  rights  of  the  parties  to  this  suit.  The  gist 
of  Mr.  Kelly's  complains  lies  in  the  claim  by  him, 
that  the  pretended  purchase  of  Wash,  by  Mr  Williams 
and  Mr.  Webb,  was  with  money  to  which  neither 
of  them  had  any  claim,  but  which  belonged  to  him, 
Kelly;  that  a  fraud  was  practiced  upon  him,  and 
his  title  to  his  property  sought  to  be  divested,  by  a  pre- 
tended purchase  by  Williams,  when  in  fact  the  purchase 
was  made  by  the  slave  Wash  himself,  with  the  money  of 
his  master. 

The  rule  is  well  settled  in  this  State,  that  a  slave  can 
not  be  the  owner  of  property,  but  whatever  accrues  to 
.the  slave,  becomes  the  property  of  his  master. — See  Bran- 
don v.  Bank  of  Huntsville,  1  Stew.  320;  Jones  v.  Nird- 
linger,  20  Ala.  488.  If  the  slave  acquire  money  or  prop- 
erty with  his  master's  consent,  and  with  like  permission 
pay  it  out  to  another,  who  receives  it  fairly  and  in  a 
business  transaction,  the  owner  of  the  slave  cannot  after- 
wards pursue  such  money  and  recover  it. — Shanklin  v. 
Johnson*   9  Alabama,  271;  Stanley  v.  Nelson,   29  Ala. 


OF  ALABAMA.  357 


Miller  v.  Hampton,  adm'r  Jhc. 


514.  But,  to  come  Within  this  rule,  the  person  who  re- 
ceives the  money  or  propert}T  from  the  slave,  must  receive 
it  in  his  own  right,  and  not  as  a  bailee  or  custodian  for 
the  benefit  of  the  slave.  If  the  money  or  other  thing  be 
received  and  held  for  the  slave,  it  is  still  subject  to  the 
master's  assertion  of  ownership. 

The  fact  that  Wash  "loaned  the  money  thus  acquired 
to  Landermilk,  and  it  [the  money]  was  used  by  Williams 
in  the  purchase  of  Wash,"  did  not,  without  more,  destroy 
Mr.  Kelly's  right  to  the  money.  It  Would  still  be  sub- 
ject to  -his  assertion  of  ownership,  so  long  as  it  was  held 
for  Wash's  benefit;  and  if  the  purchase  was  in  fact  made 
with  money  furnished  by  the  slave,  without  the  know- 
ledge of  Mr.  Kelly,  and  this  change  of  title  was  procured 
to  be  made  to  Williams,  but,  in  reality,  was  for  the  benefit 
of  the  slave  himself, — then,  on  the  astertaininent  of 
these  facts  by  the  jury,  Mr.  Kelly  would  have  the  right 
to  retake  the  possession  of  his  slave. 

Reversed  and  remanded. 


MILLER  vs.  HAMPTON,  Adm'r  &c. 

[deti.ntk  FOB  slates.] 

1.  Chargrx  yivcn  on  request  mvH  be  (al.cn  by  jury  on  retirement. — "When 
charges   to  the  jury,  in  writing,  are  given  by  the  court  at  the  re- 

'  quest  of  u  party,  it  ia  the  duty  of  the  court  to  allow  the  jury  to 
take  such  charges  with  them  on  their  retirement,  and  the  refusal 
to  do  ?o  is  i  rror:  the  s'.itun-  (Code,  I  2355)  is  mandatory,  and  not 
simply  di  cctory. 

i. — A  delivery  bond,   executed  by  the 
defendant  in  detinue,  whi<  h  doea  not  recite  any  fact  showing  that 
ndant  had  n  of  the  property  at  the  Berviceol  the 

wril  top  bim  from  showing,  in  defense  of  the  action, 

that  !)•'  did  n  ion  of  the  property  at  that  tim<-  ; 

nor  does  the  giving  of  such  bond  operate  an  estoppel  en 


SUFKF.ME  COURT 


Miller  v.  Hampton,  ailm'r  &c. 


ncninst  him. — {Explaining  and  limiting Wallia  v.  Long,  1(»  Ala.  738.) 
3.  Admissibility  «f  parol   to  vary  date  of  deed. — Parol   evidence  is  ad- 
missible., to  ehow  that  a  d-oed  or  bond  was  in  fact  executed  on  a 
different  day  from  that  stated  in  it. 

Appeal  from  the  Circuit  Court  of  Walker. 
Tried  before  the  Hon.  A.  A.  Coleman. 

This  action  was  brought  by  J.  W.  Hampton,  ns  the 
administrator  of  Martha  Miller,  deceased,  against  Lucius 
C.  Miller  and  Matthew  R.  Miller,  to  recover  several 
slaves;  and  was  commenced  on  the  12th  March,  1859. 
The  writ  was  executed  by  the  sheriff,  on  the  day  of  its 
date,  on  both  of  the  defendants,  who,  on  the  same  day, 
executed  a  delivery  bond  for  the  forthcoming  of  the 
slaves,  which  was  approved  by  the  sheriff  on  the  14th 
March,  and  the  condition  of  which  was  in  the  following 
words:  "  Whereas  the  above-named  J.  W.  Hampton  did, 
on  the  12th  March,,  HJ59,  obtain  from  the  office  of  the 
circuit  court  of  Walker  county  a  writ  or  summons  against 
the  said  L.  C.  Miller  and  M.  R.  Miller,  returnable  to  the 
spring  term  of  the  circuit  court  of  said  county;  and 
whereas  the  sheriff  of  said  county  was,  by  said  writ, 
commanded  to  seise  and  take  iti  possession  the  following 
slaves,"  (naming  litem;)  "by  virtue  of  which  summons, 
II.  (i.  Lollar,  sheriff,  did  take  possession,  of  the  above- 
named  slaves:  now,  if  the  above-bound  L.  O.  and  M.  R. 
Miller  shall  well  and  truly  deliver  the  above-mentioned 
slaves  to  the  said  J.  W.  Hampton,  administrator  as  afore- 
said, within  thirty  days  after  judgment,  in  case  the  said 
Millers  fail  in  the  suit,  and  pay  all  damages  of  said  prop- 
erty and  costs,  then  the  foregoing  obligation  to  be  void," 
&c.  The  defendants  pleaded,  "in  short  by  consent,"  non 
delineiit,  and  the  statute  of  limitations  of  six  years. 

On  the  trial,  as  the  bill  of  exceptions  shows,  after  the 
plaintiff  had  read  in  evidence  the  delivery  bond  executed 
by  the  defendants,  "the  defendants  offered  evidence 
showing,  that  said  Matthew  R.  Miller  did  not  have  pos- 
session of  any  of  said  slaves  at  the  commencement  of  this 
suit,  and  that  do  demand  had  been  made  of  him  for  said 


OF  ALABAMA.  359 


Miller  v.  Hampton,  adm'r  kc. 


•laves  before  the  bringingot  this  suit;  and,  in  connection 
with  this  evidence,  offered  to  prove  that  the  name  of  said 
Matthew  K  Miller,  as  one  of  the  makers  of  said  delivery 
bond,  was  not  signed  by  hirn.  This  testimony  was  offered, 
as  stated  at  the  time,  to  contradict  the  recitals  of  said 
bond  as  to  possession  ;  the  said  defendant  admitting  the 
bond  to  be  his  bond  and  genuine."  The  court  excluded 
the  evidence,  and  the  defendants  excepted. 

The  conrt  charged  the  jury,  "that  the  delivery  bond 
given  in  this  case  estopped  both  of  the  defendants  from 
denying  that  they  had  possession  of  the  slaves  sued  tor 
at  the  service  of  the  writ ;"  to  which  charge  the  defend- 
ants excepted."'  "The  defendants  asked  the  court  to 
give  several  charges,  which  were  in  writing,  and  which 
the  court  gave  as  asked.  The  defendants  then  asked  the 
court  to  permit  the  jury  to  take  said  charges,  so  given  by 
the  court,  with  them  on  their  retirement  to  consider  of 
their  verdict;  but  the  court  refused  to  do  so ;  to  which 
refusal  thr  defendants  excepted." 

The  several  rulings  of  the  court  to  which  exceptions 
were  reserved,  arc  now  assigned  as  error. 

Tuns.  M.  I  "or  appellant. — 1.  The  delivery  bond 

did  not  estop  the  defendants  from  showing  that  Matthew 
R.  Miller   was    not  in    p<  a  of  the  property  at  the 

service  of  the  writ.  It  contains  no  recital  of  possession 
by  them,  or  of  facts  from  which  such  possession  can  be 
implied  :  and   it<   m<  ution  cannot  operate  as  an 

estoppel  v  sinre  the  plaintiff's  conduct  could  not 

have  been  in  any  manner  influenced  by  it.    It  was  simply 
intended    t-.   -•.■cure   the   delivery  of  the  property  to  the 
plaintiff,  and   the  payment  of  the  costs  nnd  damages,  in 
•  vent  h<  led  in  the  suit)  and  it  cannot  be  ex- 

tended by  construction  to  purposes  not  contemplated  by 
the  parti  1192-98;  1  Ureenl.  Kv.  §§  J2-27* 

1  Phil.    Kv  and    notes;    MrCravey  V 

Romson,  19  Ala.  4M  j  Pounds  v.  Richards,  21   Ala.  421 
ne  v.  Britton,  22  Ala.  648;  Cratcbield  v.  Hudson 
23  Ala.  898;    Ware  v.  Cowles,  24  Ala.  446;   14  Ala.  371 


360 SUPREME  COURT 

Miller  v.  Hampton,  adm'r  &c. 


27  Ala.   651;  29  Ala.   233;  Giles  v.    Pratt,  2  Hill,   (So. 

139  ;  1  Car.  &  P.  22 ;  2  M.  &  R.  481 ;  11  Shep.  332  ; 

7  Conn.  214;  4  Mass.  ISO,  273;  2  Pick.  425;  9Pick.520; 

1  Rawle,  141  ;  2  John.  382;  3  Rand.  563;  8  W.  &  S.  1  ■ 
31  Ala.  53:!.  575;  7  Barr,  185;  8  Wendell,  483;  9  B 
C.  586;  6  N.  II.  453. 

2.  The  jury  ought  to  have  been  permitted  to  take  with 
them,  on  their  retirement,  :he  written  charges  which  had 
been  given  at  the  instance  of  the  defendants.  This  was 
not  a  matter  of  discretion  with  the  court,  but  a  right  se- 
cured to  the  defendants  by  statute.  The  statute  is  man- 
datory, and  not  directory  merely-;  and  it  ought  to  receive 
such  a  construction  as  will  effectuate  the  purposes  intended 
by  it.—  Code,  §  2865;  Ex  parte  Banks,  28  Ala.  28,  and 
bases  there  cited;  1  Bouv.  Die.  473;  4  S.  &  R.  265; 
3  Burr.  2539. 

John  T.  Morgan,  contra. — 1.  As  to  the  conclusiveness 
of  the  delivery  bond,  see  Wallis  v.  Long,  16  Ala.  738. 

2.  That  the  word  may,  as  used  in  section  2355  of  the 
Code,  is  directory  merely,  see  Ex  parte  Simonton,  9  Por- 
ter, 895;  Walker  v.  Chapman,  22  Ala.  116;  17  Ala.  440; 

2  Ala.  305;  3  Humph.  157. 

R.  W.  WALKER,  J.— [Jan.  30,  1861.]— 1.  The  Code 
provides,  that  "charges  moved  for  by  either  party,  must 
be  in  writing,  and  must  he  given  or  refused  in  the  terms 
in  which  they  are  written  ;  and  it  is  the  duty  of  the  judge 
to  write  'given'  or  'refused/  as  the  case  may  be,  on  the 
document,  and  sign  his  name  thereto;  which  thereby 
becomes  a  part  of  the  record,  and  may  be  taken  by  the 
jury  with  them  on  their  retirement." — Code,  §  2355. 
Under  this  law,  when  a  party  asks  a  proper  charge,. he 
has  the  right  to  have  it  given  in  Hie  terms  in  which  it  is 
asked;  and,  in  order  that  he  may  have  the  full  benefit  of 
it  before  the  jury,  he  may  demand  that  it  shall  be  taken 
with  them,  so  as  to  be  subject  to  their  examination,  on 
their  retirement.  '  >ne  of  the  purposes  of  the  law  is,  that 
there  shall  be  no  misunderstanding,   on  the  part  of  the 


OF  ALABAMA. 361 

Miller  v.  Hampton,  ailm'r  &c. 


jury,  as  to  the  written  charges  given  or  refused  by  the 
court;  and  this  end  is  much  more  surely  attained  by 
having  the  charges  before  the  jury  during  their  delibera- 
tions, than  when  the\r  are  simply  read  to  them  by  the 
court,  and  then  withheld  from  their  inspection.  When 
written  charges  are  asked,  and  either  given  or  refused, 
the  law  makes  them  a  part  of  the  record — as  much  so  as 
the  depositions,  or  other  documentary  evidence  read  on 
the  trial ;  and  both  alike  should  be  subject  to  the  inspec- 
tion of  the  jury  during  their  retirement.  Where  numer- 
ous charges  in  writing  are  asked  by  counsel,  some  of 
which  are  given,  and  some  refused,  it  might  often  happen, 
if  the  charges  were  withheld  from  the  jury,  that  they 
would  fail  to  recollect  the  substance  of  the  charges  given, 
or  even  confound  those  which  had  been  given  with  those 
which  were  refused;  and  in  this  way  serious  injury  might 
result  to  one  of  the  parties.  In  cases  such  as  those  we 
have  supposed,  it  would  be  as  reasonable  to  compel  the 
jury  to  depend  upon  their  memory  as  to  the  contents  of 
the  documentary  evidence  introduced  on  the  trial,  as  to 
deny  them  the  possession  of  the  written  charges  upon 
the  law  of  the  case  given  by  the  court.  It  follows,  that 
the  court  erred,  in  refusing  to  permit  the  jury  to  take  with 
them,  on  their  retirement,  the  written  charges  which  had 
been  given  at  the  instance  of  the  defendant. — See  Polly 
v.  McCall,  at  June  term,  1860. 

2.  The  only  other  question,  which  we  deem  it  necessary 
to  notice,  is  that  which  is  presented  by  the  several  charged 
of  the  court,  to  the  effect  that  the  delivery  bond  estopped 
both  the  defendants  from  denying  that  they  had  poe 
sion  of  the  slaves  at  the  time  of  the  service  of  the  writ. 

"The  law  of  estoppel  is  not  so  unjust  and  absurd,  as  it 
has  been  too  much  the  custom  to  represent.     The  prin- 
ciple is,  that  where  a  man   has  entered  into  a  solemn  en- 
ment,  by  and  under  bis  hand  and  seal,  as  to  certain 
.  he  shall  not  be  permitted  to  deny  any  matter  which 
he  has   so  asserted."—  /',  r  Ta  niton,  J.,  in    Bowman   v. 
Taylor,  l*  Ad.  &  Ell.  278.     The  doctrine  oi  estoppel  has, 
however,  beeu  guarded  with  great  strictness;  not  because 
21 


362  SUPREME  COURT 

Miller  v.  Hampton,  adni'r  &c. 

tin.-  party  enforcing  it  necessarily  wishes  to  exclude  the 
truth,  for  it  is  rather  to  be  supposed  that  that  is  true 
which  the  opposite  party  has  already  solemnly  recited  ; 
but  because  the  estoppel  may  exclude  the  truth.  Hence, 
estoppels  must  be  "  certain  to  every  intent,  and  are  not 
to  be  taken  by  argument  or  inference  ;"  for  no  one  shall 
be  denied  setting  up  the  truth,  unless  it  is  in  plain  con- 
tradiction to  his  former  allegations  and  acts. — Co. 
Litt.  352  (b);  1  Greenl.  Ev.  §22;  Bowman  v.  Taylor, 
2  Ad.  &  Ell.  278-9. 

The  delivery  bond,  executed  by  the  defendants,  is  set 
out  in  the  record.  The  condition,  after  reciting  the  issu- 
ance of  the  summons  against  the  defendants,  and  that 
the  sheriff  was  commanded  thereby  to  seize  and  take  in 
possession  certain  slaves,  states  that,  by  virtue  of  said 
summons,  the  sheriff  "did  take  possession  of  said  slaves." 
It  then  proceeds — "now,  if  the  above-bound  L.  C.  and  M. 
R.  Miller  shall  well  and  truly  deliver  the  above-mentioned 
slaves  to  the  said  J.  W.  Hampton,  administrator  as  afore- 
said, within  thirty  days  after  judgment,  in  case  the  said 
Millers  fail  in  the  suit,  and  p;iy  all  damages  of  said  prop- 
erty, and  costs,  then  the  foregoing  obligation  to  be  void; 
otherwise,  to  remain  in  full  force  and  effect."  There  is 
no  express  acknowledgment  in  the  bond  that  the  defend- 
ants, or  either  of  them,  had  possession  of  the  slaves  at 
the  time  of  the  service  of  the  writ,  or  the  commencement 
of  the  suit;  nor  is  their  possession  a  necessary  implica- 
tion from  any  fact  recited  in  the  bond,  or  from  the  act  of 
the  defendants  in  executing  it.  The  purpose  of  the  bond 
was  not  to  admit  the  possession  of  the  slaves  by  the  de- 
fendants, hut  merely  to  secure  the  delivery  of  the  property, 
and  the  payment  of  the  costs  and  damages  to  the  plain- 
tiff, in  case  he  should  succeed  in  the  action.  The  bond 
might  have  been  given  in  the  terms  in  which  it  was  exe- 
cuted, whether  the  defendants  had  possession  or  not,  or 
where  only  one  of  them  had  possession.  As  a  general 
rule,  where,  at  the  commencement  of  the  suit,  a  slave  is 
in  the  possession  of  the  defendant's  bailee  for  hire,  for  an 
unexpired   specific  period,  the  defendant  cannot  be  held 


OF  ALABAMA.  363 


Miller  v.  Haraptoo,  adm'r  &o. 


liable  in  detinue.  If,  in  such  a  case,  the  sheriff  was  di- 
rected to  take  possession  of  the  slave,  the  bailor  might 
certainly  give  a  deliv  !  in  the  terms  ot  the  one  set 

out  in  this  record,  without  being  thereby  estopped  from 
showing  in  his  defense  on  the  trial,  that,  he  was  not  iu 
possession  of  the  property  al  the  service  of  the  summons. 
Tin-  oiilv  facts  distinctly  recited  are,  that  the  plaintiff  had 
obtained  a  writ  or  summorfa  against  the  defendants;  that 
by  said  writ  the  sheriftVas  commanded  to  ind  take 

in  possession   certain  and  that  by  virtue  thereof 

the  sheriff  did  take   possession  of  said  slaves.     There  is 
no    estoppel    by    y].<-v.(\,    unless   the   matter  is   distinctly 
alleged,   and    with   certainty   to  every   intent.     Such  an 
ppel    cannot  I  by  intendment  or  implica- 

tion to  matters  which  are  not  clearly  within  its  terms. 
Naglcc  v.  I:  _;.!-.,.  7  r,,in\  L85, 199j  McCom.bv.  Gilkejr, 
29  Miss.  140  '..mpbeii  v.  Knight,  11  Bhepley, 

2  Smith's  Lead.  ■  Parsons  Contr.  340  (c),  and 

As  the  recitals  of  this  bond  do  not  admit  pos 
•siou.  ami  sis  the   making;  of  such  admission  was   not  the 
purpo&e  to  :  ed    by  the   execution  of  the    bond,  it 

cannot  opei  technical  estoppel  by  deed. 

Nor  can    the   act  of  the  defendants   in  executing  the 

bond  constitute  a(\  estoppel  I  an 

r  admission  of  a  party  from  the  rani,  of  evi  i 

the  dignity  •  steut 

with  i  '  n,  a.,(i    it 

met  of  the  pai  ;y  by  wliotn 

Jit    to  I  •     tMppel,  that    he  Would    be 

injured    b\   alio'  >  be   ini  I 

tent    with    it  —  -'••  .    _i    Ala.    4  .                er  v. 

Darby,    I  ■  J;  Hunlej    v.   Hun                     .   '.'1; 

mi.  v.  \  I  izell  v.  Qdaf),8  Hill,  . 

nith'H  L  5th  Am.             •  „  -7  ;  . 

I"'S 

warn  ing  place, 

delivery   bond  i-  with  tb<         t 

which   the   ex.-:  nded    t< 

that 


364  SUPREME  COURT 


Miller  v.  Hani]iton,  adm'r  &c. 


defendants.    For  the  bond  might  well  have  beer,  executed 

by  both  defendants,  although  the  property  was  in  fact  in 
the  sole  possession  of  one  of  them  ;  or,  as  we  have  before 
suggested,  the  bond  might  have  been  executed  by.'botb 
defendants,  although  the  property  was  in  the  po 
of  neither,  but  in  that  of  their  bailee  for  hire.  If  the 
or  admission  is  susceptible  of  two  constructions,  one  of 
whieh  is  consistent  with  the  fact  sought  to  be  proved,  the 
party  would  not  be  concluded  from  establishing  it  :  he- 
cause  to  do  so  might  operate  to  detent  a  man's  rights  by 
argument  or  inference,  which  is  not  allowable. —  Ware  v. 
Cowles,  24  Ala.  44'.».  In  like  manner,  it  cannot  be  pre- 
tended that  the  act  of  the  defendants  has  in  any  manner 
influenced  the  conduct  of  the  plaintiff.  It  is  not  shown 
that  he  has  taken  any  step  in  consequence  of  the  execu- 
tion of  the  bond,  whieh  he  would  not  have  taken  if  the 
bond  hail  not  been  given.  The  summons  had  been  issued, 
and  the  property  seized  under  it.  before  the  bond  was 
•executed.  The  issuance  of  the  summons,  and  the  seizure 
of  the  property,  were  the  cans.',  not  the  consequence  i<l' 
the  execution  of  tin-  bond.  As  it  does  not  appear  that 
the  act  of  the  defendants  in  giving  the  bond  has  induced 
the  plaintiff  to  alter  his  condition,  or  change  his  course 
of  action,  he  cannot  set  it  up  as  an  estoppel 
Authorities  supra;  Copeland  v.  Cnpelund,  28   Me. 

ele  v.  Putney,  15  Me,  827;  Eleane  v.  Rogers,  9  B.  & 
C.  577;  Farreli  v.  Higley,  Hill  &  Denio,  87;  Wallis  v. 
Truesdell,  6  Pick.  455;  Jnckson  v.  Pixley,  «.i  Cush.  400; 
Decberd  v. T.lanton,  :;  Sireed,  "T;*.. 

Wc  do  uo1  Bay  that  the  execution  of  the  bond  does  not 
;  t"  -how  p  i:  by  the  defendants,  but  simply 

that  it  do<  -  not  conclude  them,  ami  preclude  all  proof  to 
the  contrary. 

In  Wallis  v.  Long.  (16  Ala.  738,)  it  was  said,  that  the 
delivery  bondg£Xecuted  by  the  defendant  in  that  case, 
whieh  was  an  action  of  detinue,  "was  an  admission  that 
he  was  in  possession  at  the  time  the  writ  was  executed, 
and  estopped  him  from  denying  that  fact;  but  that,  as  no 
ft] mission  or  recital  was  contained  in  it,  showing  posses- 


OF  ALABAMA.  365 

Miller  v.  Hampton ,'adm'r  &c. 

8ion  anterior  to  that  time,  it  did  not  preclude  the  defend- 
ant from  showing  that  at  the  date  of  the  writ  he  had  not 
the  possession."  If  the  bond  in  this  case  did  not  differ 
in  its  terms  from  the  one  referred  to  in  the  case  just 
cited,  that  decisiou  vyould  be  in  conflict  with  the  views 
we  have  expressed.  The  bond  is  not  set  out  in  the  report 
of  the  ease;  but  we  have  examined  the  original  record, 
and  find  that  it  coi- tains  what  must  be  regarded  as  a  dis- 
tinct admission  that  the  defendant  was  in  possession  when 
the  writ  was  executed.  After  reciting  the  issuance  of  the 
writ  in  detinue  in  favor  of  the  plaintiff  against  the  de- 
fendant, and  that  by  virtue  of  it  the  sheriff  had  taken 
possession  of  the  slave  sued  for,  the  bond  proceeds  thus: 
"And  whereas  the  said  Jeremiah  Long  is  desirous  of 
retain  ng  (he  possession  of  said  slave,  under  the  hiring  which 
he  madeof  Wm.  Easley,  administrator  of  John  Lemmons, 
deceased,"  kc.  The  difference  between  the  bond  which 
was  given  in  that  case,  and  the  one  now  before  us,  is  too 
.apparent  to  require  remark  ;  and  the  opinion  of  the  court, 
giving  to  that  bond  the  effect  of  an  estoppel  upon  the 
question  of  possession,  is  in  entire  harmony  with  our 
present  decision. 

[3.]  We  suppose  that  one  of  the  exceptions  was  intended 
to  present  the  question,  as  to  the  right  of  the  defendants 
to  show  that  the  bond  was  not  executed  on  the  day  on 
which  it  bears  date;  but  the  exception  is  not  so  stated  as 
to  raise  that  question.  It  is  very  clear,  however,  that  it 
is  competent  to  show  that  a  deed  or  bond  was  executed 
on  a  different  date  from  that  stated  in  it. — McComb  v. 
Gilkey,  29  Miss,  R.  146,  190. 

Judgment  reversed,  and  cause  remanded. 


M|  SUPREI  FRT 


NfcAll  '     \ 'lister. 


BLISTER'S  EXECUTOR  vs.  McALLISTER. 

[bill  in  equity  nv  widow,  a  iter  ai.i  >>rvrM-  o?  power,  for  recovery 

I.   E  '  tntlne. — A  plantation,  about  five  mil 

a  ih  ■  town  in  which  t lie  husband  resided  at  the  time  of  his 
h,  from  which  he  drew  his  Bupplieg  Mid  derived  his  oniire  in- 
come, and   tin-   aUpeiinh  of,    A'kicu   constituted  his  only 
bu-i:               not  bo  connected  with  bis  residence,  (I 

i  entitle  the  widow  to  the  possession  Or  rents  thereof  until  her 
dowi  (A.  J.  Walker,  ' '.  J.,dissenti 

9  ird me*n«  pro/ft  ■wire  then 

er  dower  hoe  been  allotted  to  the  widow  by  the  probal    court, 
she  may  come  into  equity  -  for  its  detention  ; 

and  the  T  her  damages,  where  the  husband  left  rx 

ne-half  of  the  rent,  from  the  death  of  her 
1      iiaiid.  until  the  assignment  of  dower. 

'.-. —  If  the    eX(  i        •* 

can  :>■'.  with  the  lab 

t  ;.-all  the  debts  and  f  admiuistratioii  out 

of  the  income,  thereby  saving  the  entire  personal  estate  for  distri- 
bution, and  distributes  to  the  widow,  under  an  order  of  the  probate 
court,  her  distributive  share  of  the  residue  of  such  income, 
tit  u ;.  -  i,  to  the  widow's  claim  lor  mesne  profits; 

if  be  acted  in  good  faith,  he  is  entitled  Lo  it  credit  out  of  the  a 
for  the  amount  of  dam  i  him  by  her;  and  it' the 

amount  received  by  her  as  a  distributee  exceeds  her  pro]  er sh 
t  •  be    seer  tain  ed  after  deducting  the  amount  of  her  recovery  from 
the  entii  e  fund  for  distribution,  he  may,  under  appropriate  plead- 
the  balance  from  her,  and  have  it  adjusted  in  the 
suit  for  tin  biie-  profits. 

Appeal  from  the  Chancery  Court  of  Marengo. 
Heard  before  the  Hon.  Wade  Keybs. 

The  bill  in  this  case  was  filed  by  Mrs.  Agnes  McAllis- 
ter, the  widow  of  William  McAllister,  deceased,  against 
the  executor  oi  said  decedent,  to  recover  the  rents  of  the 
plantation  belonging  to  the  decedent,  from  the  time  of 
his  death  until  her  dower   was  assigned   to  her  under  uu 


OF  ALABAMA.  367 


McAllister's  Executor  v.  McAllister. 


order  of  the  probate  court.  The  decedent  died  in  Octo- 
ber, 1853,  leaving  no  children  or  their  descendants;  hav- 
ing executed  and  published  his  last  will  and  testament, 
which  was  duly  admitted  to  probate  after  his  death,  and 
of  which  Lewis  B.  McCarty,  the  defendant,  was  appointed 
the  executor;  and  being  seized  and  possessed  of  a  house 
and  lot  in  the  town  s-f  Demopolis,  in  which  he  resided  at 
the  time  of  his  death,  and  a  plantation  about  five  miles 
distant  in  the  country,  which  contained  about  eight  hun- 
dred acres.  The  widow  dissented  from  the  will,  within 
the  time  prescribed  by  the  statute,  and  afterwards  institu- 
ted proceedings  in  the  probate  court  for  an  allotment  of 
her  dower;  and  her  dower  was  allotted  to  her,  by  com- 
missioners appointed  by  said  probate, court,  on  the  14th 
January,  1856.  The  bill  alleged,  that  the  decedent  "resided 
on  and  cultivated  said  plantation,  from  the  year  1820, 
until  January,  1851,  when  he  removed  to  the  town  of 
Demopolis,  (about  five  miles  distant  therefrom,)  for  the 
sake  of  comfort  and  society,  and  for  no  other  purpose; 
that  he  continued  the  cultivation  of  said  plantation  as  be- 
fore, was  engaged  in  no  other  business  than  that  of  plant- 
ing, derived  all  his  income  from  said  plantation  to  the 
time  of  his  death,  and  all  the  supplies  for  the  support 
and  consumption  of  his  family,  except  sugar,  coffee,  and 
similar  articles  of  foreign  export,  as   well  after  as  before 

■aid  removal  to  Demopolis;  that  said  plantation  was 
in  fact,  at  the  time  of  his  death,  but  an  appurtenance  to 

residence  in  the   town  of  Demopolis,  and  connected 
therewith;"  and  that  said  executor  had  been  in  the 

•  ii  of  said  plantation,  and  in  receipt  of  the  rents  and 
profits  thereof  from  the  time  of  his  appointment  and 
qualification.  The  complainant  claimed  that  she  was 
"entitled  to  the  rents  of  said  entire  plantation,  from  and 
after  her  husband's  death  until  dower  was  assigned  her, 
under  and  by  virtue  of  her  right  to  the  possession  th< 
until  the  assignment  of  herdower,  together  with  iut 
on  said  rents}"  and  added  the  general  prayer,  tor  other 
and  further  reli 

The  executor  filed  an  answer  to  the  bill;  denying  that 


368  SUPREME  COURT 
*~ 


McAllister's  Executor  v.  McAllister. 


the  plantation  was  appurtenant  to  the  decedent's  resi- 
dence, or  connected  therewith,  or  that  the  complainant 
was  entitled  to  any  portion  of  the  rents;  but  admitting 
all  the  other  allegations  of  the  bill.  He  alleged,  also,  by 
way  of  defense,  that  with  the  proceeds  of  the  crops  raised 
on  the  plantation  he  had  paid  all  the  debts  of  the  estate, 
with  the  expenses  of  administration,  and,  under  an  order 
of  the  probate  court,  had  distributed  one-half  the  residue- 
to  the  complainant,  as  a  part  of  her  distributive  share  of 
the  personalty;  and  he  insisted,  that  she  was  thereby 
estopped  from  asserting  any  claim  to  the  rents. 

By  agreement  between  the  parties,  it  was  admitted, 
"that  the  decedent  drew  all  of  his  supplies  from  said 
plantation  during  'his  life-time,  and  owed  money  and 
large  debts  at  the  time  of  his  death  ;  that  the  defendant, 
as  executor,  had  cultivated  four  hundred  and  thirty-five 
acres  of  said  plantation,  from  21st  August,  1854,  until 
the  14th  December,  185G,  when  the  complainant's  dower 
was  assigned  to  her;  that  said  land  was  worth,  by  way  of 
rent,  $2  50  per  acre;  that  the  crops  raised  on  said  land 
by  said  defendant,  during  the  time  aforesaid,  were  sold 
by  him  for  $5,101  58,  of  which  amount  $3,553  43  was 
applied  by  him  to  the  payment  of  debts,  being  all  the 
debts  of  the  estate;  that  the  complainant  dissented  from 
the  will,  and  took  one-half  of  the  property  after  the  pay- 
ment of  debts;  that  a  balance  of  $1,875  66,  after  pay- 
ment of  debts,  was  left  in  said  defendant's  hands,  arising 
from  the  proceeds  of  said  crops,  as  ascertained  by  a  de- 
cree of  the  probate  court  of  said  county,  on  a  settlement 
bad  before  the  institution  of  this  suit;  and  that  one-half 
of  this  amount,  $937  83,  was  decreed  to  complainant  on 
said  settlement,  and  paid  to  her  by  said  defendant." 

On  final  hearing,  on  bill,  answer,  and  admitted  facts, 
the  chancellor  held  the  complainant  entitled' to  the  entire 
rents  of  the  plantation,  and  ordered  nn  account  to  be 
taken  by  the  master;  and  his  decree  iff  now  assigned  as 
error. 


I.  W.  Garrott,  for  appellant. 


OF  ALABAMA.  369 


McAllister's  Executor  v.  McAllister. 


Jno.  T.  LoiMax,  contra. 

A.  J.  WALKER,  C.  J,— [July  9,  1861.]— The  com- 
plainant's deceased  husband  removed  from  his  plantation, 
in  1851,  to  a  town  distant  about  five  miles,  and  thence- 
forward until  his  death,  in  1853,  resided  in  the  town; 
drawing  his  supplies  from  the  plantation,  having  no  busi- 
ness save  the  superintendence  of  the  plantation,  and  no 
income  except  from  the  plantation.  The  majority  of  the 
court  are  of  the  opinion,  that  the  plantation  of  the  de- 
ceased' was  not,  within  the  meaning  of  section  1359  of 
the  Code,  "connected  with  the  dwelling-house  where  the  de- 
ceased most  usually  resided  next  before  his  death"  and  that 
the  widow  was  not  entitled  to  the  possession  of  the  plan- 
tation until  her  dower  was  assigned  her.  They  think,  that 
the  same  reasoning  which  would  make  the  plantation  so 
connected  in  this  case,  would  produce  the  same  result^ 
the  plantation  were  a  hundred  miles  distant  from  the 
residence,  and  would  give  the  widow  the  possession,  as 
her  quarantine,-  of  two  or  more  plantations  wTithin  a  few 
miles  of  the  residence.  They  think,  that  to  hold  the 
plantation  in  this  case  to  be  within  the  statute,  would  be 
inconsistent  with  the  spirit  and  intent  of  the  law,  and 
would  establish  a  precedent  which  might  lead  to  most 
unjust  and  unreasonable  consequences.  I  would  myself 
prefer  a  different  conclusion,  and  I  think  the  previous 
decisions  of  this  court  sustain  the  widow's  right  to  possess 
the  plantation  until  her  dower  was  assigned. — Pinckardv. 
Pinckard,  24  Ala.  250;  Smith  v.  Smith,  13  Ala.  329. 

[2.]  The  complainant  had  a  right  to  come  into  chancery 
to  recover  damages  for  the  detention  of  her  dower;  and  the 
measure  of  her  damages  would  be  one-half  the  rent,  (the 
deceased  having  left  no  descendants,)  from  the  husband's 
death,  until  the  dower  was  assigned. — lYrrine  v.  Perrinc, 
35  Ala.  644;  Blatter  Y.  Meek,  ib.  528;  Smith  r.  Smith, 
13  Ala.  829-886.' 

[3.]  As  a  defense  to  this  suit,  it  is  said  by  the  defend- 
ant, that  he  carried  on  the  plantation,  and  from  the  income 
he  discharged  the  debts  of  the  estate,  leaving  the  entire 


370  SUPREME  COURT 

McAllister's  Executor  v.  McAllister. 

malty  to  be  divided;  that  there  was  a  large  balance 
in  his  hands,  after  the  payment  of  the  debts  and  expenses 
of  administration  ;  and  that  one  half  of  this  balance  was, 
under  a*  decree  of  the  probate  court,   paid  to  the  com- 
plainant.    The  argument,  we  suppose,  is,  that  the  com- 
plainant, in  having  the  income  of  the  plantation  appro- 
priated to  the  payment  of  the  debts  of  the  estate,  and 
the  personalty  thus  saved  from  sale  to  pay  the  debts,  and  in 
receiving  one-half  the  balance  of  the  income,  has  received 
the  benefit  of  one-hajf  the  rent  of  the  land.     The  income 
from  the  plantation  was  the  product  of  the  soil,  the  labor 
of  the  slaves  aud  animals,  the  implements  of  husbandry, 
and  the  skill  and  industry  of  the  supervisor,   undistin- 
guishably  commingled.     It  is  not  true,  therefore,  that  the 
income  stood  to  the  complainant  in  the  place  of  the  rent 
of  the  land.     It  was  the  product  of  the  commingled  ele- 
Ifci.eiits  above  stated,   one  of  which  was  the   use  of  the 
land;  and  to  one-half  the   benefit  of  all  the  others  she 
was  entitled  as  a  distributee  of  the  estate.     By  virtue  of 
aright  altogether  distinct  from  her  dower,  she  was  en- 
titled to  her  distributive  share,  after  the  payment  of  debts 
and  expenses,  in  the  product  of  all  the  agencies  employed, 
except  the  use  of  the  land  ;  aud  to  one-half  that  she  was 
as  dowress  entitled.     The  doctrine  of  election  obliges  a 
party,  having  inconsistent  rights,  to  choose  between  them. 
No  such  ineonsistent  rights  exist  here,  between  which  a 
choice  could  have  been  made.     The  complainant  eould 
not  have  given  up  the  income  derived  from  the  land,  or 
the  benefit  accruing  to  her  from   the  discharge  of  debts 
and  expenses  out  of  it,  without  at  the  same  time  yielding 
up  her  right  as  a  distributee,  which  she  could  not  be  re- 
quired to  do. 

If,  however,  the  executor  in  good'faith  cultivated  the 
land,  and  the  distributees  have  accepted  the  benefit  of  his 
U9e  of  the  land,  he  is  entitled  to  a  credit  out  of  the  assets 
for  the  rent  which  may  be  recovered  from  him  by  the 
complainant. — MoCrelis*  v.  Hinkle,  17  Ala.  -J59;  Gerald 
v.  Bunkley,  ib.  170.  And  if,  upon  the  recovery  by  the 
complainant  of  her  rents,  it  should  be  the  case,  that,  with 


OF  ALABAMA.  371 


Cook  v.  Baine. 


the  charge  upon  the  estate  thus  superadded,  the  amount 
received  by  the  complainant,  as  a  distributee,  should  ex- 
ceed her  share,  then  the  defendant  would  be  entitled  to- 
recover  the  excess  from  her. — Sellers  v.  Smith,  11  Ala.  264. 
Should  the  defendant  have  such  right  against  the  com- 
plainant, we  see  no  reason  why  the  balance  should  not 
be  adjusted  in  this  ca9e ;  and  if  necessary,  the  pleadings 
may  be  amended  for  that  purpose. 
Reversed  and  remauded. 


■il 


COOK  i-5.  BAINE. 

[trespass  AGAINST  SHERIFF,  dv  purchaser  from  defendant  in  execution.] 

1.  Right   of  defendant  in  execution   to  sell  or  exchange  property  exempt 
from  levy  and  sale. — The  act  of  Fob.  14',  1854,  (Session  Acts  1853-4r 

p.  243,)  repealing  aection  24t'4of  the  Code,  also  repealed  the  prior 
aotof  Feb.  7.  {tb.  69*)  amendatory  of  said  section  ;  and  the  repeal 
of  these  statutes  removed  all  restrictions  on  the  right  of  the  de- 
fendant in  execution  to  sell  or  dispose  of  property  exempt  from 
levy  and  sale. 

2.  What  property  is  exempt  from  levy  and  sale. — If  the  defendant  in 
execution,  being  the  head  of  a  family,  owns  but  one  horse,  and  no 
mule  or  oxen,  the  horse  is  exempt  from  levy  and  sale  under  execu- 
tion, (Code,  2  24G2,) although  said  defendant  also  owns  slaves. 

8.  Action  by  purcha*  •  making  levy, — 

A  purchaser  from  thedefen  lant  in  execution,  of  property  exempt 
from  levy  and  sale,  may  maintain  an  action  against  the  sheriff,  for 
a  subsequent  levy  and  sale,  without  making  the  affidavit  required  by 

the  statute  (I  from  the  dHendant  in  execution. 

Appeal  from  the  Circuit  Court  of  Choctaw. 
Tried  before  the  lion.  C.  W.  Rapier. 

Tii  i  was  brought  l>y  William  A.  Baine,  against 

John  P.  Cook,  to  recover  damages  for  the   tortioua  seiz- 
ure and  sale  oi'  a  horse;  and  was  commenced  on  the  2 


372 SUPREME  COURT 

Cook  v.  Baine. 

21arcb,  1859.  No  pleas  appear  in  the  record.  The  bill 
of  exceptions  is  as  follows:  "On  the  trial  of  this  cause, 
there  was  proof  tending  to  show,  that  the  plaintiff  pur- 
chased the  horse  in  controversy,  with  his  wife's  money, 
from  one  "W".  D.  Henson,  to  whom  said  horse  belonged 
at  the  time  of  said  purchase;  that  said  Henson  then  re- 
sided in  this  State,  and  was  a  man  of  family,  and  had  no 
other  horse,  nor  any  mule  or  oxen,  but  had  negroes;  that  the 
defendant,  who  was  the  deputy  sheriff  of  said  county,  had 
an  execution  in  his  hands  against  said  Henson  before  and 
at  the  time  of  said  purchase  by  plaintiff,  and  afterwards 
levied  said  execution  on  said  horse ;  that  the  horse 
was  a  work-horse ;  that  said  Henson,  after  the  sale  to  the 
plaintiff,  removed  from  the  State,  with  his  property;  and 
that  no  claim  was  made  for  said  horse,  under  the  provis- 
ions of  the  exemption  law.  The  court  charged  the  jury, 
among  other  things,  that  if  there  was  an  execution  in  the 
defendant's  hands  against  Henson,  and  said  Henson  was 
then  a  man  of  family,  and  resided  in  this  State,  and  had 
a  work-horse,  and  no  other  horse,  uor  any  mule  or  oxen, 
and  sold  said  horse  to  plaintiff  before  the  levy  of  said  ex- 
ecution,— then,  under  these  circumstances,  there  was  no 
lien  on  the  horse  in  the  hands  of  the  plaintiff;  and  if 
the  defendant  afterwards  levied  on  the  horse,  he  would 
be  a  trespasser,  as  against  the  plaintiff,  although  no  claim 
of  exemption,  by  affidavit  or  otherwise,  was  made  by  the 
defendant  in  execution."  The  defendant  excepted  to 
this  charge,  and. he  now  assigns  the  same  as  error. 

G.  F.  Smith,  for  appcllaut. 
T.  B.  Wetmokk,  contra. 

STONE,  J.— [Jan.  21,  1861.]— The  legislation  of  the 
session  of  1853-4,  in  regard  to  property  exempt  from  ex- 
ecution, is  somewhat  confused.  Two  several  statutes 
were  passed  at  the  same  session,  bearing  on  section  2464 
of  the  Code.— See  Pamphlet  Acts  1853-4,  pp.  69  and  242. 
Section  2464  of  the  Code  had  provided,  that  "  neither 
the  head  of  the  family,*  nor  any  member  thereof,  has  the 


OF  ALABAMA.  373 


Cook  v.  Bainc. 


power  to  sell  or  dispose  of  the  property  thus  exempt 
from  sale  or  levy;  and  if  sold  and  taken  possession  of 
by  the  purchaser,  or  if  abandoned  by  the  family,  by  the 
death  or  dispersion  of  its  members,  is  liable  for  the  debts 
existing  at  the  time  the  exemption  was  claimed."  The 
act  approved  February  7th,  1854,  (Acts,  69,)  declared,  "that 
section  2404  (of  the  Code)  be  so  amended,  that  the  head 
of  any  family  may  exchange  the  property  reserved  for 
the  use  of  said  family,  for  property  of  like  kind,  or  tor 
other  property  exempt  from  sale  or  levy,  without  sub- 
jecting said  property  to  sale  or  levy  in  the  hands  of  the 
transf'erree."  Then  came  the  act  approved  February  14, 
1854,  which  declared,  "that  section  2464  of  the  Code  of 
Alabama  be,  and  the  same  is  hereby,  repealed." — Pamph- 
let Acts  185:3-4,  242. 

It  will  be  seen  that  the  act  of  February  7th,  1854,  was 
but  a  modification  of  section  2464  of  the  Code.  It  only 
removed  some  of  the  restraints  which  the  Code  had  im- 
posed on  the  power  to  sell  and  dispose  of.  property  exempt 
from  sale  or  levy.  It  might  appropriately  appear  as  a 
proviso  to  section  2464;  thus  limiting  the  operation  of 
the  restricting  clause.  In  such  case,  its  language  would 
be,  '•provided,  fl>"f  thi  head  of  anyfamty  may  exchange  any 
property  reserved  for  the  use  of  said  family,  for  property  of 
like  kind,  or  for  other  property  exempt  from  sale  or  levy,  ivith- 
out  subjecting  said  property  to  salt  or  levy  i».  the  hands  of  the 
tranferree."  The  second  section  of  the  act  of  February 
7th  was  but  an  amendment  of  section  2464  of  the  Code, 
and  had  no  field  to  operate  upon,  except  that  which  had 
been  occupied  1>y  thai  section.  It  follows  that,  when  sec- 
tion 2464  of  the  Code  was  repealed  by  the  later  statute 
of  February  14,  the  second  section  of  the  act  of  Febru- 
ary 7th  had  nothing  to  operate  upon,  and  fell  also.  This 
the  question  for  our  decision,  freed  from  the 
pn  >\  i-iniis  I'H'l  real  rid  ioua  which  section  2464  of  the  Code 
had  imposed. 

[2.]  This  'or  wrongfully  taking  and  disposing 

of  a  work-in  I  property  of  Mr.  Baine.  The 

seizure   complained  of  was  a  levy  on   the  horse  by  Mr. 


-.74    SUPKKME  COURT 

Cook  v.  Baine. 

Cook,  as  deputy  sheriff,  under  an  execution  against  one 
Henson.  Henson  had  owned  the  horse  while  the  execu- 
tion was  in  the  hands  of  the  sheriff;  and  the  horse  was 
thus  liable  to  the  execution,  unless  section  2462  of  the 
Code  protected  him  from  levy  and  sale.  Henson,  during 
the  time  the  execution  had  been  in  the  sheriff's  hands, 
was  a  citizen  of  Alabama,  the  head  of  a  family,  and 
owned  no  other  horse,  mule  or  oxen.  It  is  thus  clear 
that  the  said  work-horse  was  exempt  from  levy  and  sale 
all  the  time  he  was  owned  by  Mr.  Henson  ;  and  the  law, 
imposed  no  restraint  on  his  right  to  sell  and  dispose  of 
him.— See  Code,  §  2462,  subd.  B. 

[3.]  Mr.  Bailie,  then,  by  his  purchase,  became  the 
rightful  owner  of  the'horse  ;  and  there  was  no  lien  upon 
the  property,  which  followed  it  into  his  hands. — See 
Simpson  v.  Simpson,  80  Ala.  225.  Can  he  maintain  this 
action  for  damages  against  the  officer  for  making  the 
levy  ?  Section  24G5  of  the  Code  enacts,  that  "  no  sheriff, 
or  other  officer,  levying  on  property  exempt  from  execu- 
tion, is  liable  for  any  damages  therefor,  unless  the  defend- 
ant, or  soriYe  other  person  tor  him,  make  affidavit  that  the 
property  about  to  be  levied  on  is  exempt  from  execution, 
and  exhibit  the  same  to  such  sherifl  or  officer."  The 
question  arises,  does  this  section  of  the  Code  bear  on  this 
case,  or  is  it  confined  in  its  operation  to  cases  in  which 
the  defendant  in  execution  is  the  plaintiff?  We  confess 
we  find  difficulties  in  any  solution  we  may  give  of  this 
question.  We  hold,  however,  that  its  language  confines 
it  to  cases  of  -nits  by  the  party  in  whose  favor  the  ex- 
emption is  claimed.  The  affidavit  is  required  to  be  made 
by  the  defendant,  or  some  btheY  'person  for  him;  and  when 
the  affidavit  is  made,  and  delivered  to  the  officer,  he  is 
required  to  uelicer  the  property,  on  demand,  to  the  defendant. 
Code,  §  2480;  Acts  1858-4,  p.  69.  Under  these  views,  it 
was  not  necessary  to  the  maintenance  of  this  action,  that 
affidavit  should  be  made  pursuant  to  section  2465  of  the 
Code. 

Judgment  affirmed. 


OF  ALABAMA.  375 


Barker  v.  Bell. 


BARKER  vs.  BELL. 

[real  action  in*  nature  of  ejectment.] 

1.  Valid//]/  of  unrecorded  mortgage ;  general  charge  on  evidence. — Tn  the 
absence  of  actual  notice,  an  unrecorded  mortgage  is  void,  as  against 
a  purchaser  at  execution  sale  against  the  mortgagor  ;  consequently, 
where  the  plaintiff  claims  under  a  mortgage,  and  the  defendant 
under  a  purchase  at  execution  sale  against  the  mqr.tgagor,  a  gen- 
eral charge  to  the  jury,  in  favor  of  the  plaintiff's  right  to  recover, 
is  erroneous,  unless  it  is  proved  that  the  mortgage  was  duly  re- 
corded, or  that  the  defendant  had  actual  notice  of  its  existence. 

2.  Sale  of  mortgaged  premise*,  under  execution  at  late,  for  part  of  mortgage 
debt. — In  this  State,  a  sale  of  mortgaged  lands,  under  execution  at 
law,  for  a  part  of  the  mortgage  debt,  passes  no  title  or  interest  to  the 
purchaser,  unless  there  has  been  a  previous  surrender  of  the  legal 
title  by  the  mortgagee;  and  such  surrender  cannot  be  implied,  in 
a  court  of  law,  from  the  facts,  that  he  was  present  at  the  sale,  made 
no  objection  to  it,  and  afterwards  received  from  the  sheriff  the 
proceeds  of  the  sale  ;  consequently,  the  lien  of  the  mortgage  is  not 
thereby  discharged,  nor  is  fhe  mortgagee,  or  a  subsequent  purchaser 
at  the  mortgage  sale  with  notice  of  the  facts,  thereby  estopped 
from  recovering  the  land  in  an  action  at  law. 

Appeal  from  the  Circuit  Court  of  Dallas. 
Tried  before  the  lion.  Nat.  Cook. 

This  action  was  brought  by  Mrs.  Matilda  Bell,  against 
William  X.  Boothe,  tenant  in  possession,  to  recover  t ho 
ession  of  two  town-lots  in  Cahaba,  with  damages  for 
their  detection;  and  Stephen  B.  Barker,  the  landlord  of 
Boothe,  wag  made  a  party  on  his  own  motion.  The 
plaintiff  claimed  the  lota  under  a  purchase  at  a  Bale  made 
by  .John  8.  Mayes,  as  the  administrator  of  John  K.  Bell, 
deceased,  under  a  mortgage  executed  to  said  Bell  by  one 
Jeremiah  Duckworth;  while  the  defendant  asserted  title 
under  a  purchase  at  sheriff's  sale,  under  sundry  executions 
against  said  Duckworth.  doe.  of  which  was  in  favorof 
paid  May!  b,  as  administrator  of  said  Bell.  ( >n  the  trial, 
as  the  bill  uf  exceptions   states,  the  plaintiff  read  in 


376 SUPREME  COURT 

Barker  v.  Bell. 

deuce,  "after  proving  its  execution  and  probate,"  the 
mortgage  from  Duckworth  to  Bell,  (which  was  dated  the 
29th  November,  1855;  was  given  to  secure  the  payment 
of  two  promissory  notes,  each  bearing  even  date  with  the 
mortgage,  and  payable  on  the  1st  January,  1857,  and 
1858,  respectively;  and  contained  a  power  of  sale,  on  de- 
fault being  made  in  the  payment  of  either  note  at  ma- 
turity ;)  and  then  proved  the  non-payment  of  the  second 
note,  the  advertisement  and  sale  of  the  premises  under 
the  mortgage,  her  purchase  at  the  sale,  and  the  deed  for 
the  premises  execuled  to  her  by  the  mortgagee's  admin- 
istrator, which  was  dated  the  9th  March,-  1858.  The 
defendant  then  proved  the  sale  of  the  premises  by  the 
sheriff,  under  sundry  executions  against  said  Duckworth, 
his  purchase  at  the  sale,  and  the  sheriff's  deed  to  him, 
which  was  dated  the  2d  November,  1857.  "It  was 
admitted,  that  one  of  said  executions  against  Duckworth 
was  in  favor  of  said  Mayes,  as  the  administrator  of  said 
John  R.  Dell,  and  was  issued  on  a  judgment  obtained  on 
the  first  of  said  notes  secured  by  said  mortgage;  but  that 
neither  said  Mayes  nor  his  counsel  ordered  a  levy  and 
sale  of  said  property  under  said  execution,  and  that  said 
levy  and  sale  were  made  by  the  sheriff  on  his  own  mo- 
tion. The  defendant  proved,  also,  that  Mayes  was  present 
at  said  execution  sale,  and  made  no  objection  to  it,  and' 
afterwards  received  from  the  sheriff  his  pro-rata  share  of 
the  .proceeds  of  sale.;  and  that  at  the  subsequent  mortgage 
sale,  at  which  the  plaintiff  purchased,  he  (defendant) gave 
public  notice  of  his  possession  and  claim  of  title,  and  that 
the  purchaser  would  buy  a  law-suit." 

On  this  evidence,  the  court  charged  the  jur}',  "that,  if 
they  believed  the  evidence,  they  must  find  for  the  plain- 
tiff." The  defendant  excepted  to  this  charge,  and  then 
requested  the  court  to  instinct  the  jury— "1st,  that,  if  the 
mortgagee,  Mayes,  sued  upon  the  first  note  secured  by 
the  mortgage,  and  sold  the  whole  property  under  an  exe- 
cution on  his  judgment,  (with  other  executions,)  and 
received  his  pro-rata  share  of  the  proceeds  of  the  sale, 
such  sale  destroyed  the  lien  of  the  mortgage,  and  the 


. 


OF  ALABAMA.  377 


Barker  v.  Bell. 


defendant  got  a  good  title  against  the  mortgagee;  2d, 
that  if  the  defendant  was  in  possession  under  sueh  execu- 
tion sale,  and  was  so  holding,  under  a  boriu-fide  claim  of 
title,  at  the  time  of  the  mortgage  sale,  and  gave  public 
notice  of  his  claim  at  that  sale,  then  the  plaintiff  got  no 
title  by  her  purchase,  und  she  could  not  recover."  The 
court  refused  each  of  these  charges,  and  the  defendant 
excepted  to  their  refusal. 

•  .  The  charge  given  by  the  court,  and  the  refusal  of  the 
charges  asked,  are  now  assigned  as  error. 

Geo.  W.  Gay'le,  and  Tiios.  II.  Lewis,  for  the  appellant. 
1.  The  sale  under  execution,  at  which  the  defendant  pur- 
chased, destroyed  the  lien  of  the  mortgage. — 1  IliUiard 
on  Mortgages,  4.30,  note;  2  ib.  ch.  28,  §§  13,  41  ;  ib.  ch.  30, 
§§  14,  10,  17;  Coote  on  Mortgages,  (538,)  612;  Pierce 
v.  Potter,  7  Watts,  475;  Berger  v.  Heister,  6  Whar.  210; 
Freeby  v.  Tupper,  15  Ohio,  467;  Hartz  v.  Woods, 
8  Barr,  471 ;  Longworth  v.  Flagg,  10  Ohio,  300 ;  Rebdy 
v.   Burgest,   1    Ohio,   157;  Duval's   Heirs  v.  McLoskvy^ 

1  Ala.   727;    Ridgway  v.  Longmacker,   18  Penn.   LM.(; 

2  Black£  245;  2  Rawle,  56;  7  Missouri,  489;  lDenio,407; 
l'Comstoek,  496;  2  B.  Monroe,  207. 

2.  The  mortgagee  cannot  sell  the  equity  of  redemption 
under  execution. — Washburn  v.  Goodwin,  17  Pick.  137; 
Atkins  v.  Sawyer,  1  Pick.  351  ;  Williams  v.  Powell, 
14  Ala.  476. 

3.  The  mortgagee  cannot,  alter  selling  the  mortgaged 
lauds  under  execution  for  a  part  of  his  debt,  proceed 
against  the  same  lands,  in  the  hands  of  the  purchaser,  for 
the  balance  of  his  debt. — Buford  v.  Smith,  7  Missouri,  4S'.»; 
2  IliUiard  on  Mortgages,  45. 

4.  The  mortgagee's  conduct  at  the  execution  sale,  in 
failing  to   make   any  objection    to   it,   estops   him 
afterwards  setting  up  any  title  to  the  property. — 1  Johns. 
Ch.  864  .  l'i  Wendell,  557;  21  Wendell, 

5.  The  plaintiff's  purchase  was  champertous  and  void. 
Herbert  v.  Ilanriek,  16  Ala.  581  ;  Dexter  &  Allen  v.  Nel- 

25 


SUPREME  COURT 

Barker  v.  Bell. 


6  Ala.  68;  Coleman  v.  Hair,  22  Ala.  59(5;  Abernathy 
r.  Boazman,  24  Ala.  1V".>. 

J.  D.  F.  Williams,  contra. — l.vThe  equity  of  redemp- 
tion is  subject  to  sale   under   execution   at  law. — (/• 
§  2455.     The  sale  under  execution,  at  which  the  defend- 
ant purchased,  conveyed  only  the  equity  of  redemption, 
and  had  no  effect  on  the  subsequent  mortgage  sale. 

2.  The  mortgagee's  presence  at  the  execution  sale,  and 
his  failure  to  object  to  it,  cannot  estop  him,  or  a  purchaser 
from  him,  from  recovering  the  property  at  law. — Steele 
v.  Adams,  21  Ala.  5-34;  MePherson  v.  Walters,  16  Ala.  T14; 
Waller  v.  Murphy,  84  Ala.  591;  Brinkerhoof  v.  Lansing, 
4  John.  Ch.  66. 

Li.  W.  AYALKEK,  J.— [Feb.  14,  1861.]— 1.  In  the  ab- 
sence of  actual   notice,  an   unrecorded  mortgage  is  void, 
.  ■i.inst  a  purchaser  at  a  sale  under  execution  against. 


t 


he  mortgagor. — Code,  §§  1287-8.    The  bill  of  exceptions 
/purports  to  set  out  all  the  evidence;  but  it  fails  to  show 
■either   the  registration  of  the  mortgage,  or  actual  notice 
,  to  the  defendant  of  tence.     A3  the  plaintiff  was 

not.  entitled  to  recover,  unless  the  mortgage  was  duly 
recorded,  or  the  defendant  had  notice  of  its  existence, 
the  court  erred  in  charging  the  jury,  that,  if  they  believed 
the  evidence,  they  must  find  for  the  plaintiff. 

[2.]  It  is  highly  probable,  however,  that  proof  of  notice 
made,  and  that  this  part  of  the  evidence  has  been 
inadvertently  left  out  of  the  bill  of  exceptions.    We  shall, 
then  msider the  question  which  would  be  presented 

by  a  record  which  showed,  in  addition  to  the  facts  now 
before  us,  either  the  due  registration  of  the  mortgage,  or 
actual  notice  of  its  existence  to  the  defendant  at  the  time 
of  his  purchase.  In  that  case,  the  question  would  be, 
whether  a  sale  of  the  mortgaged  property  under  execution 
at  law,  for  a  part  of  the  mortgage  debt,  by  the  direction, 
or  with  the  knowledge  and  consent  of  the  mortgagee, 
and  his  subsequent  reception  of  the  proceeds  of  the  sale 
from  the  sheriff,  discharge  the  lien  of  the  mortgage,  or 


k      1A    i 


OF  ALABAMA.  079 


e.r  v.  Bell, 


estop  the  mortgagee,  or  ;i  subsequent  purchaser  at  the 
mortgage  sale  with  notice  of  the  facts,  from  recovering 
the  land  in  an  action  at  law. 

In  Jackson,  daiid,  v.  liall,  (10  Johns.  481,)  it 

v*;t-  bold,  that  where  a  creditor,  Becured  by  mortgage, 
brings  his  action  for  the  deb  jr>'d,  recovers  judg- 

ment, and  issues  execution,  which  is  levied,  by  his  direct 
tion,  on  the  mortgaged  premises;  and  the  same  are  sold, 
under  8ii  ition,  toapui  having  notice  of  the 

mortgage, — the  hitter  acquires  nothing  but  the  equity  of 
redemption,  and  the  mortgagee  may  recover  the  poi 
sion  by  actio')  at  law.  In  this  State,  after  a  careful  con- 
sideration of  the  question,  it  has  been  held,  that  the 
mortgagor's  equity  of  redemption  cannot  he  sold,  under 
execution  at  law,  for  the  whole  or  apart  of  the  mortgage 
;  and  the  effect  of  the  decision  is,  that  a  sale  of  the 
property,    under  &uch   execution  •  nothing  to  the 

purchaser. — FoweJ-1  v.  Williams,  11  Ala.. 470.     iSee,  also, 

'■ :  Surges!  v.  Thomas,  ib.  221 ; 
•    ton  v.  ::  \,  4  B.  Monroe,  142;  Camp  v.  Coxe, 

1  Dev.  &   Batti  Atfcins  v.  Sawyer,  1  Pick.  851. 

After  i  lie  law-  the  mortgage  'tliej.egal  estate  is 

the  mortgagor  has 
,    but   an   <  ji nity  of  redemption. — l'auihr 
Barron,  •'•_'  Ala.  11.     As  this  equity  of  redemption^  the 
only  interesl  whi  mortgagor  has  in  the  pro]' 

is  all   tbat  can  be  ■•■! d  unch  r  execution  against  hii  . : 
and  even  this  inti  .  not  be  sold,  if  the  (xec\ition  ■ 

\   ,  i' 
ed  pro]  ution  for  the 

to  the   purchase  r,  n 

with  wh, 
clothed   by  the  mortga  .  i.     it  is  on: 

>r  can  hi 
ale  under 
AVithout  such  -  irrender,  tl  [tie  is  in  the  moi 

and  only  an  equity  i  ption  in  th< 

and  as  the  :.  inuot  be  atri 


380  SUPREME  COURT 

Barker  v.  Bell. 

redeem  by  such  a  sale,  nothing  passes  to  the  purchi 
Unl ess  it  can  be  shown,  therefore,  in  the  present  c 
that  the  mortgagee  lias  done  something  which  amounts 
to  a  surrender  of  his  legal  title  to  the  mortgagor,  the  hit- 
ter had  no  interest  which  could  be  readied  by  this  execu- 
tion. Such  a  surrender  is  sought  to  be  implied  from  the 
fact,  that  Mayes,  the  administrator,  was  present  at  the 
execution  s:ile,  made  no  objection  thereto,  and  subse- 
quently received,  in  part  payment  of  a  judgment  'for  a 
part  of  the  mortgage  debt,  a  portion  of  the  money  paid 
by  the  defendant,  it  may  be  true  that,  when  the  mort- 
gagee either  directs  a  sale  of  the  mortgaged  property 
under  execution,  for  the  whole  or  any  part  of  the  mort- 
gage debt,  or  knowingly  sanctions  such  sale,  and  receives 
the  proceeds,  he  would  be  thereby  precluded,  in  a  court 
of  equity,  -from  afterwards  setting  up  the  mortgage  title 
against  the  purchaser. — See  Waller  v.  Tate,  4  B.  Mon- 
roe, 531.  But  it  is  settled  in  this  State,  beyond  the  reach 
of  controversy,  (whatever  may  be  the  rule  elsewhere,) 
that  a  parol  estoppel  cannot  operate  a  transfer  of  the  legal 
title  to  land.— McL'herson  v.  Walters,  16  Ala.  714;  Smith 
v.  Muud.iy,  IS  Ala.  182;  Walker  v.  Murphy,  34  Ala.  .191. 
The  largest  cflect  that  could  possibly  be  given  to  the  acts 
and  declarations  of  the  administrator  in  this  case,  would 
be  to  hold,  that  they  amounted  to  a  statement  by  him 
that  the  title  of  (he  mortgagee  was  extinguished.  Even 
if  we  go  a  step  further,  and  concede  that  the  defendant 
bought  tie  laud  in  reliauce  upon  this  statement,  these 
fa<'t-  combined  would  not,  in  a  court  of  law.  preclude  the 
nor  gagee,  or  a  purchaser  at  the  mortgage  sale,  from  a 
recove  y  in  ejectment  against  the  defendant. — Authorities 
supra-  :  :  o,  Svvin.k  v.  Sears,  I  llill,  17;  Delaplaiue  v. 
Hitchcock,  6  Hill,  17. 

W.hcre  the  mortgage  is  of  real  estate,  nothing  less  than 
a  payment,  or  something  equivalent  to  a  payment  ot  the 
mortgage  debt,  a  release  in  writing  of  the  mortgage,  or  a 
re-conveyance  in  terms,  can  operate,  in  a  court  of  law,  a 
divestiture  of  the.  legal  title  of  the  mortgagee. — See 
Haddock  v.   Bulfinch,  31  Maine,  246;  Crosby  v.  Chase, 


•    V 


OF  .ALABAMA.  ,         .     381 

3arker  v.  Bell. 


5  Shepl.  309;  Hoyt  v.  Swift,  13  Verm.  129.  It  has  oven 
been  questioned,  whether  payment  of  the  debt,  after  the 
law-day  of  the  mortgage,  without  an  actual  re-conveyance, 
restores  the  tee  to  the  mortgagor,  or  will  enable  him  to 
recover  in  ejectment  against  the  mortgagee. — See  4  Kent, 
133-4,  and  rotes;  Collins  w Robinson,  33  Ala.  94;  Dotpn 
•v.  Russell,  17  Conn.  140.  In  this  ease,  there  has  been 
-neither  payment  of  tin-  debt,  release  in  writing  of  the 
mortgage,  nor  actual  re-conveyance  of  the  fee;  and  the 
mortgage  title  must,  id  a  court  of  Iqw,  stand  unimpaired. 

The  rule  declared  in  Wallis  v.  Long,  (16  Ala.  73S.)  and 

Acker  v.  Bender,  (33   Ala.  230,)  that  the  title  which  is 

conveyed  to  the   mortgagee  may  be  released  at  law  by  a 

Subsequent   verbal   contract,  providing  for  the  discharge 

of  the   mortg.ige,    but  leaving  the   debt  it  was  given  to 

secure  unaffected,   must  be  limited,   as  it  was  in   those 

•  applied,  to  mortgages  of  personal  property.     If  the 

subsequent  verbal   contract  was   for  the   release  of   the 

mort  bt,   the  (•;;-••   might  be  different.     The  debt, 

even  when  secured  by  a  mortgage  on  real  estate,  may  lie 

released  by  subsequent  verbal   contract;  and  the  release 

■of  the   debt    has   the  same   effect  as  its   payment. — See 

1  Cowcn,   1:2:2;  Arraitage  v.    \Vicklifte,   12  B.   .Mo; 

:-;i7. 

There  are,  it  is  true,   decisions  to  the  effect,   that  the 
lien  of  a  mortgage  is  discharged,  by  a  sale  under  a  judg- 
ment for  the  whole  or  a  part  of  tin;  debt  secured   by  the 
mortgage. — Pierce   v.   Totter,   7   Watts,  477;   Berger  v. 
Heister,  6  Whart.   210;  Bank  v.   Chester,  11   Penn.  St. 
Clarke   v.    Stanley,    10   Barr,  472;  Ridgway  v. 
jmaker,  Is   Penn.  St.  Li.    215  j    Freeby  v.  I  upper, 
!•"•  (>i,io,  -4-;;  ;  Lessee  <•!'  Fosdick  v.  HUk,  $.  84*     But 
is  are  made  to  rest  upon  reasons  which  can- 
not o]  with  us,  because  they  assume  the  existence 
of  certain   rules  of  law,  which  have   been  denied  a  ; 
I-  jurisprudence. 

In  Pennsylvania,  it  seems  to  be  the  rule,  that  the  mort- 
gaged lands  may  he  sold  under  execution  at  law  for  the 
mortgaged   debt;  and   that,  in  such    case,  the  -ale  Works 


332  :■  !ME  COURT 

Barker  v.  Bell. 


the  Baine  effect  as  though  the  proceeding  were  under  the 
mortgage  itself.  The  mortgagee  lias  the  option  to  pro- 
ceed, either  by  scire  fadios  on  the  mortgage,  or  hy  aj 
of  debt  on  the  bond;  and  wlien  judgment  is  obtained  in 
either  proceeding,  he  may  sell  the  mortgaged  land.  "The 
writs,  it  is  true,  bear  different  names;  but  there  is  no> 
more  virtue  in  a  sheriff's  sale  on  a  levari  facias,  than  in 
a  sheriff's  sale  on  a  >ohas>     The  one,  as  well 

as  the  ofh#r,  sells  the  estate;  and  when  the  estate  is 
for  the  mortgage  aebt,  or  any  part,  the  whole  estate,  1 
and  equitable,  is  sold,   unincumbered,  to  the  purcha 
whatever  the  name  of  the  writ  under  which   the  sheriff 
acts."— Clarke  v.   Stanley,  10  Barr,  474,   47G,    478-82; 
Bank  v.  Chester,  11  Penn.  St.  R.  287-8.     The  very  reverse 
of  this  is  the  rule  in  this  State;  for  the  result  of  the  d 
cision  in  Powell  v.  Williams,  (14  Ala.  476,)  is,  that  tl 
mortgaged  lands  cannot  be  sold  under  execution  at 
for  the  mortgage  debt,  and  that  such  sale  passes  nothing 
to  the  purchaser. 

In  Ohio,  the  decisions  referred  to  are  placed,  partly,  on 
the  ground  that,  by  the  statute  law  of  that  State,  lands 
cannot  be  sold  wit]  ai,  and  for  no  less  p'q 

two-thirds  the  app  ;  and  partly,  also,  on  the 

ground,  that  a  mortgagee,  Who  causes  the  mortgaged 
premises  to  be  sold  as  the  property  of  the  mortgagor*  is 
therein-  estopped  from  setting  up  his  title  against  the 
purchaser.  It  must  be  remembered,  that  our  doctrine  in 
reference  to  the  application  of  estoppels  en  pais  to  the 
title  to  land,  does  not  prevail  in  either  Ohio  or  Pennsyl- 
vania. On  the  contrary,  the  rule  in  both  of  those  States 
is,  that  the  holder  of  the  legal  title  to  kind  may,  by  acts 
en  pafSy  opped,  even  in  a  court  of  law,  from4  assert- 

■.;  his  title.— Ilamilti  >n  v.  Hamilton,  4  Barr,  193;  Bi 
v.  Barr,  4  Ohio,  35  .Jngharn  v.  Smith,  10  Ohio,  2. 

It  is  obvious,  then  fore,   that  the  eases  to  which  we 
have  referred,  as  in  ot  with  the  view  we  have  taken 

of  this  question,  proceed  on  grounds  which  our  previous 
decisions  have  rendered  inapplicable  here. 
Judgment  reversed,  and  case  remanded. 


■        ... 


OF  ALABAMA.  333 


Warev.  Greene. 


WARE  vs.  GREENE. 

[SUMMAHV  PROCEEDING    AC.AINST  TAX-'M  IX ECTOR  AND  SUKETfES.] 

1.  Parties. — In  a  summary  'proceeding    against  a  tax-collector  and 

his  sureties,    (Corle\  U  2596-97,  2fl  (for  his  failure    to   pay 

into  the  State  treasury  the  taxes  collected  by  him,  the  unexplained 

omission  of  one  of  the  sureties  from  the  notice  is  fatal  to  the  pro* 

ling. 

.'    Statute  of  limitations. — The  State  not  being  expressly  included  in 

the   act   of  1S.TJ,   (Clay's    Digest,  320,   .  '.mi. )    which    prescribes  sJx 

irs   a^    the   limitation  of  actions  against   the  sureties  of  public 

officers,  that   statute  does    not    apply    ttJ   a   summary    proceo<!'nig 

mst  a  tax-collector  and  his  sureties,  instituted  in  the  name  of 

the  comptroller  of  public  accounts,  lor  the  use  of  the  State. 

Appeal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  lion.  Jno.  Gill  Shorter. 

This  was  a  summary  proceeding,  instituted  in  the 
name  of  W.  J.  Greene,  the  comptroller  of  public  ac- 
counts, for  J,he  use  of  the  State,  against  John  (1.  I 

.  of  Coosa  county  for  the  year  1845,  and 
-faiiies  L.  Hurgess,  A.  'C.  Mahan,  Hamilton  Ward,  and 
EL  L.  Lauderdale,  as  the  sureties  on,  his  official  bond; 
and  was  commenced  on  the  l^th  May,  1&57.  Th§  de- 
fendant Ware  craved  oyer  of  1  he  bond,  (which  was  set 
out,)  and  demurred  to  the  notice  b,  sause  W.  0.  whet- 
stone and  Allen  Thomas,  who  wi  n  also  obligors  jointly 
with  the  other  defendants,  were  not  included  in  the 
notia  fmdants  to  the  p  ihg.     The  demurrer 

being  overruled,  said   Ware  then    pleaded  the  stati 
limitations  of  six  years;  aliegi  oedthebond 

only  as  the  surety  of  John  C.  -.     T'he  court  sus- 

tained a  demurrer  to  this   |  d  its  rulings  on  the 

lings,  with  other  mutters,  are  now  assigned  as  error. 

Ciiilt'  -.  ['v.n.  for  appellant. 

M.  A.  Baldwin,  Attorney  General,  contra. 


384 SUPREME  COURT  

Ware  v.  Greene. 

A.  J.  WALKER,  C.  J.— [June  20, 1861.}— This  i 
maty  proceeding  for  a  tax-collector's  default.  There  an 
sureties  on  the  bond,  and  the  notice  is  issued  against  only 
four  of  the  sureties.  The  omission  of  two  of  the  sureties  is 
not  in  an}*  way  explained.  This  omission  is  fatal  to  the  pro- 
ceeding. The  proceeding  is  summary,  and  highly  penal, 
and  must  be  pursued  in  strict  conformity  to  the  law- 
authorizing  it.— Code,  §§  2632,  2628,  2596,  2597.  The 
sections  of  the  Code  referred  to  show  that  the  proceeding 
authorized  is  against  the  tax-collector  and  his  sureties; 
but  there  is  no  authority  to  issue  a  notice  against  only  a 
part  of  the  sureties.  It  may  be  that,  under  section  2597, 
judgment  might  be  rendered  as  to  so  many  of  the  sure- 
ties as  received  notice,  omitting  those  who  were  not 
Served  with  notice.  But  neither  thatsection,nor  any  other, 
authorizes  theunexplained  omission  from  the  notice,  by 
which  the  proceeding  is  instituted,  of  a  portion  of  the 
sureties.  The  absence  of  an  authority  to  proceed,  as 
was  done  in  this  case,  against  a  part  of  the  sureties, 
omitting  the  others,  is.  fatal  to  the  notice — Collier  v, 
Powell '&  Bradley,  23  Ala.  579. 

[2.]  We  deem  it  necessary  to  notice  only  one  other 
question  presented  by  the  record;  and  that  is,  whether 
the  statute  of  limitations  is  available  to  the  sureties  of 
the  tax-collector.  This  is  a  proceeding  by  the  State; and 
it  is  an  established  doctrine,  that  no  statute  of  limitations 
can  operate  against  the  State,  unless  the  State  is  express- 
ly included.— Aug.  on  Lim.  §§  34,  35,  36  ;  Sedgwick  on 
Stat,  and  Con.  Law,  105;  U.  S.  v.  Hoar,  2  Mason,  311.  The 
statute  prescribing  a  limitation  as  to  actions  against  the 
sureties  of  public  officers,  does  not  include  the  State,  and, 
therefore,  has  no  application  to  this  case. — Clay's  Dig. 
329,  §  90.  And  it  mu3t  be  observed,  that  the  question  of 
the  statute  of  limitations  is  in  this  case  governed  by  the 
law  as  it  was  before  the  adoption  of  the  Code. — Session 
Acts,  1853-4,  p.  71. 

Reversed  and  remanded. 


OF  ALABAMA.  385 


Burdine  v.  Grand  Lodge  of  Alabama. 


BITRDLYE  vs.  GRAND  LODGE  OF  ALABAMA. 

[ACTION'   ON   COMMON   MOXEV    COCNT.S.-] 

1.  Judicial  notia  offri  e-masons  as  charitable  corporation. — The  courts  of 
t\\\<  Si  ite  will  take  . judicial  notice  of  the  fact,  that  the  society  of 
free-masons  is  a  purely  charitable  corporation. 

2.  Oampttency  of  corporator  as  juror,  and  a&witneas'for  corporation. — The 
society  of  free-masons  being  a  purely  charitable  corporation,  a 
member  of'the  society  cannot  be  said  to  have  the  smallest  pecu- 
niary interest  in  the  event  of  a  suit  to  which  the  society  is  a  party; 
Consequently,  he  is  a  competent  juror,  and  a  competent  witness  for 
the  society. 

8.    Va-vi  descriptiorij&f  corporation, — The  society  of  free-masons 

in  this  State  being  incorporated  by  the  name  of  the  "  Most  Wor- 
shipful Grand  Lodge  of  Ancient  Free-masons  of  Alabama  and  its 
Masonic  Jurisdiction,"  and  suing  by  that  name,  a  charter  granted 
by  the  "  Grand  Lodge  of  the  State  of  Alabama,"  authorizing  the 
persons  to  whom  it  is  directed  ''  bo  form  themselves  into  a  regular 
lodge  of  ancient  free-masons,  by  the  name  of  Vorkville  Lodge  No. 
♦131,"  sufficiently  appears  to  have  been  issued  by  said  corporation, 
and  the  misdescriplion.does  not  amount  to  a  material  variance. 

Appeal  from  the  Circuit  Court  of  Pickens* 
Tried  before  the  lion.  A.  A.  Coleman. 

This  action  was  brought  by  the  "Most  Worshipful 
Grand  Lodge  of  Ancient  Free-masons  of  Alabama  and 
its  Masonic  Jurisdiction,"  against  James  T.  Burdine.  The 
complaint  contained  the  common  count  for  money  had 
and  received,  and  another  on  an  account  stated.  The 
pleas  were — 1st,  the  general  issue;  2d,  payment;  and, 
3d,  that  the  plaintiff  never  was  a  corporation  authorized 
to  sue  on  said  causes  of  action.  Before  the  trial  was 
commenced,  as  the  bill  of  exceptions  shown,  the  def 
ant  challenged  for  cause  two  of  the  jurors,  who  were 
shown  to  be  members  of  subordinate  lod  iblished 

under  the  authority  of  said  grand  lodge;  and  reserved  an 
ptiou  to   the  overruling  of  his   objection.     On   the 
trial,  the   plaiutifl  offered  in  evidence  an   instrument  of 


386  SUPREME  COURT 


Burdine  v.  Grand  Lod.^e  of  Alabama. 


writing,  which  was  proved  to  be  sealed  with  the  seal  of 
said  grand  lodge,  and  signed  by  D.  Clopton,  grand-mas- 
ter, P.  Williams,  deputy  grand-master,  S.  H.  Dixon, 
senior  graud- warden,  Geo.  W.  Gaines,  junior  grand-war- 
den, and  A.  P.  P  lister,  grand-secretary,  in  the  following 
words : 

"  We,  the  Grand  Lodge  of  the  State  of  Alabama,  to 
all  the  enlightened,  passed  and  raised,  to  whom  these 
presents  shall  come,  greeting:  Know  ye,  that,  by  the 
high  power  vested  in  us,  we  do  hereby  authorize  and  em- 
power the  following  well-beloved  brethren,"  (naming 
seven  persons,)  "residing  at  or  near  Yorkville,  in  the 
county  of  Pickens,  State  of  Alabama,  to  form  themselves 
Into  a  regular  lodge  of  ancient  free-masons,  to  be  opened  at 
Yorkville,  by  the  name  of  Yorkville  Lodge  No.  131;  and 
we  do  hereby  empower  the  above-named  brethren  and 
their  successors,  with  their  constitutional  number,  to  as- 
semble and  open  a  legal  lodge,  to  confer  the  degrees  of 
entered  apprentice,  fellow-craft,  and  master-mason,  to 
admit  members,  and  to  do  all  other  business  appertaining 
to  said  degrees;  conforming  in  all  their  doings  to  the  by- 
laws of  their  lodge,  and  the  constitution  and  by-laws  of 
the  Grand  Lodge  of  the  State  of  Alabama;  for  which  pur- 
pose this  shall  be  their  sufficient  warrant  or  charter.  Given 
under  our  hands,  and  the  seal  of  the  Grand  Lodge,  at 
Montgomery,  this  4th  December,  A.  L.  5851." 

(Signed  and  sealed  as  above  stated.) 

The  plaintiff  offered  this  document  in  evidence  "to 
show  that  Yorkville  Lodge- No.  13)  was  under  the  juris- 
diction of  said  grand  lodge ; "  and  the  court  admitted  it  for 
that  purpose,  against  the  defendant's  objection,  and  he 
excepted  to  its  admission.  The  plaintiff  also  read  in  evi- 
dence its  charter  of  incorporation,  as  found  in  Clay's 
Digest,  pp.  374-5;  and  then  offered  one  Payne  as  a  wit- 
ness, who  testified,  on  voir  dire,  "that  he  was  a  member 
of  said  grand  lodge,  and  master  of  Yorkville  Lodge  No. 
131."     The  defendant  objected  to  the  competency  of  said 


OF  ALABAMA.  387 


Burdine  v.  Gsand  Lodge  of  Alabama. 


witness,  and  reserved  an  exception  to  the  overruling  of 
his  objection.  The  testimony' of  Payne  was  to  the  effect, 
that  the  defendant  had  been  treasurer  of  Yorkville  Lodge 
"No.  131,  and  was  indebted  to  said  lodge  for  a  balance  of 
money  in  his  hands  as  sifch  treasurer.  The  rulings  of 
the  court  above  stated,  with  others  which  require  no  par- 
ticular notice,  are  now  assigned  as  error. 

Turner  Reavis,  for  appellant. — 1.  It  is  one  of  the  old- 
est maxims  ot  the  law,  that  a  jury  must  bo  indifferently 
chosen;  and  that  not  only  the  smallest  pecuniary  interest, 
but  even  favor  or  bias  towards  a  party,  disqualifies  a  juror. 
Finch's  Law,  pp.  309-402;  3  131a,  Com.  303,  m.  p.;  Hes- 
keth  v.    Braddock,  3    Burr.   1856-7;    Lynch  v.  Horry, 
1  Bay,  229;  Davis  v.  Allen,  11  Pick.  460;  Wood  v.  Stod- 
dard, 2  Johns.  194;  Page  v.  Railroad  Co.,  1  Foster,  438. 
The  jurors  objected  to  could  not  have  been  unbiased,  in- 
different, or  disinterested;  for  the  corporation   suing,  of 
which  they  were  members,  is  not  only  authorized  to  hold 
property,  and  to  sue  for  money  or  other  property,  but 
"to  do  all  other  tilings  concerning  the  estates  and  moneys 
hf  the  lodge/' — an  authority  which  would  empower  the 
members  to  divide  among  themselves  the  very  money  re- 
covered in  this  case.     It  is,  in   effect,  the  case  of  one  of 
the  parties  to  a  suit  sitting  as  a  juror  on  its  trial. 

2.  For  the  same  reasons,  Payne  was  not  a  competent 
witne-ss^for  the  plaintiff;  being  really  an  integral  part  of 
the  corporation,  and  giving  evidence  for  himself.  As  a 
member  of  the  corporation,  the  judgment  would  be  evi- 
dence foror  against  him  in  any  subsequent  Suit  between 
him  and  any  other  mem'  an  account  of  the  money, 
debts,  and^statc  of  the  corporation:  and  in  the  event  of 
a  dissolution  ol  tjie  corporation,  he  would  be  entitled  to 
a  share  of  the  money  recovered  in  this  suit. — Code, 
§§  1489  90,  2651. 

3.  The  instrument  offered  in  evidence,  as  the  charter 
of  Yorkville  Lodge  No.  lol,  ought  not  to  have  been  ad- 
mitted.    A  corporation  can  only  act  in  and  by  its  corpo- 


388 .SUPB  E  ME  COURT 

Bnrdine  v.  Grand  Lodge  of  Alabama, 
rate  name.-     The  charter  of  the  subordinate  lodge,  there- 
fore, emanated  from  some  other  body  than  the  plaintiff; 
or,  if  granted  by  the  plaintiff,  was  an  unauthorized  act. 

E. ."W".  Peck,  contra. — 1.  The  plaintiff  is  a  purely  chari- 
table corporation,  as  this  court  must  judicially  know, 
even  if  the  fact  were  not  apparent  on  the  face  of  its  char- 
ter. The  corporation  being  charitable,  its  members  are 
competent  jurors  and  witnesses. — 1  Greenl.Ev.  §§  332-3; 
M.  E.  Church  v.  Wood,  5  Ohio,  283;  3  Phil.  Ev.  pp.  58- 
60,  note  37;  Purple  v.  Horton,  13  Wendell,  22. 

2.  No  specific  objection  was  made  to  the  charter  of  the 
subordinate  lodge;  no  material  variance  or  misdescription 
of  the  corporation  is  shown  by  it;  and  it  does  not  lie  in 
the  defendant's  mouth,  after  acting  under  the  charter,  and 
receiving  the  money  belonging  to  the  lodge,  to  question 
the  authority  of  the  charter. 

» 

STO^TE,  J.— [July  9,  1861.]— It  is  certainly  a  good  and 
wholesome  rule,  which  should  be  strictly  regarded,  that 
any  pecuniary  interest,  even  the  smallest,  in  the  event  of 
the  suit,  will  disqualify  a  person  from  serving  on  the  jury 
charged  with  its  trial.  This  rule  is  necessary  as  a  protec- 
tion to  the  public  interest,  and  as  a  guaranty  of  that  purity 
and  integrity  in  the  administration  of  the  law,  which 
alone  can  inspire  respect  for,  and  confidence  in"  our  judi- 
cial tribunals. — Russell  v.  Hamilton,  2  Scam.  56;  Lynch 
v.  Horry,  1  Bay,  229;  Wood  v.  Sioddard,  2  Johns.  194; 
Finch's  Law,  399;  Hesketh  v.  Bradd:>ck,  3  Burr.  1856; 
Davis  v.  Allen,  11  Pick.  466;  Brittain  v.  Allen,  2  Den. 
120;  Page  v.  Railroad  Co.,  1  Foster,  438;  3  Black.  Com. 
'363. 
•  If,  however,  the  soeiety  of  free-masons  is,  in  Hs  financial 
policy,  purely  eleemosynary,  or  charitable,  theu  the  mem- 
bers of  the  grand  lodge,  as  such,  cannot  be  said  to  have 
any  pecuniary  interest  in  the  result  of  the  suit;  and  no 
other  ground  ot  challenge  against  these  jurors  being 
shown,  the  ruling  of  the  circuit  court,  on  the  hypothesis 
stated,  would  be  free  from  error. — Com.  v.  OVNeil,  6  Gray, 


OF  ALABAMA.  389 


Burdine  v.  Grand  Lodge  of  Alabama. 


343;  iVJ.  E.  Churoh  v.  Wood,  5  Ohio',  283;  1  Greenl.  Ev. 
§  333;  Nasoo  v.  Thatcher,  7  Mass.  398;  Phil.  Ev.,  Cow. 
k  Hill's  Notes,  (edition  of  1850,)  vol.  3,  pp.  58-9. 

The  society  known  as  free-masons  has  long  existed  in 
this  country,  and  in  almost  or  quite  every  part  of  it.  The 
purpose  and  objects  of  the  society  have  been  made  public 
in  numerous  books,  periodicals,  and  public  addresses. 
From  all  these  sources  of  information,  and  from  the  gen- 
erally received  and  accredited  judgment  of  the  public, 
the  sole  purpose  and  object  with  which  masonic  institu- 
tions acquiro  money  and  property,  beyond  their  current 
expenses  as  a  society,  (furniture,  lights,  fuel,  stationery, 
and  the  like,)  are  for  the  bestowal  of  reliefs  and  charities 
to  the  needy.  In  addition,  the  3d  and  4th  sections  of 
the  act  to  incorporate  masonic  lodges  in  the  State  of 
Alabama,  tend  to  confirm  the  belief  that  the  society  is 
eleemosynary  in  its  aims.  Under  these  circumstances, 
we  hold,  that  we  will  take  judicial  notice,  that  the  grand 
and  subordinate  lodges  of  free-masons  within  the  State 
of  Alabama  constitute  a  charitable  or  eleemosynary  cor- 
poration.— Mayor  of  Wetumpka  v.  Winter,  29  Ala.  GGO; 
Salomon  v.  The  State,  28  Ala.  88;  Dozier  y.  Joyce,  8  Por. 
303;  LamptoH  v.  Haggard,  3"  Mon.  149;  Jones  v.  Over- 
street,  4  Mon.  547;  Floyd  v.  Ricks,  14  Ark.  293;  Stephen 
v.  State'  of  Georgia,  11  Ga.  241;  Duncan  v.  Littell, 
2  Bibb,  424;  Sterne  v.  The  State,  20  Ala.  43;  Ward  v. 
The. Stat?,  22  Ala.  16. 

It  results  from  what  we  have  said  above,  that  the  cir- 
cuit court  rightly  overruled  the  several  objections  to  the 
jurors  and  to  the  witness. 

[3. J  It  is  also  urged,  that  the  circuit  court  erred  in  ad- 
mitting in  evil  Mice  the  charter  of  the  subordinate  lodge, 
because  of  a  variance  between  the  corporate  name  of  the 
grand  lodge  of  free-masons  as  found  in  the  act  of  incor- 
poration, and  that  by  which  it  granted  the  charter  to  the 
subordinate  lodge. 

In  the  hading  case  of  thcMayorand  Burgesses  ^i  Lynn, 
(10  Rep.  124.)  it  is  said,  that  "variances  in  syllabiset  V 
and  not  in  sensu  et  re,  are  not  material."     It  is  further 


390 SUPREME  COURT 

Burdine  v.  Grand  Lodge  of  Alabama. 

stated,  as  the  rule  for  determining  when  Hie  variance  is 
immaterial,  that  the  descriptive  words  used  shall  import  the 
certain  and  true  name  of  the  corporation.  In  Newport  Me- 
chanics' Manf.  Co.  v.  Starbird,  (L0  N.  H,  125,)  it  is  inti- 
mated as  sufficient,  "if  there  is  enough  expressed  to  show 
that  there  is  such  an  artificial  being,  and  to  distinguish  it 
from  all  others."  In  the  case  of  Doe,  on  demise  of  Major, 
&c,  of  Waldon,  v.  Miller,  (1  Barn.  &  Aid.  699,)  the  dec- 
laration stated  a  demise  by  "the  mayor,  aldermen,  capital 
burgesses  and  commonalty  of  the  borough  town  of  Waldon^' 
The  act  of  incorporation  given  in  evidence,  named  the 
corporation  "the  mayor,  aldermen,  capital  burgesses,  and 
commonalty  of  Waldon."  The  court  of  king's  bench 
ruled  the  variance  immaterial. — See,  also,  Mayor,  &c,  of 
Stafford  v.  Bolton,  1  Bos.  &  Pul.  43;  Inhab.  of  Mid  lie- 
town  v.  McConnice,  Pennington,  (N.  J.)  500,  in  margin; 
African  Society  v.  Yarick,  13  Johns.  38;  Midway  Cotton 
Manf.  v.  Adams,  10  Mass.  360;  Inhab.  v.  String,  5  Ilalst. 
323;  Milford  and  Oh'il.  Turnpike  Co.  v.  Brush,  10  Ohio, 
112;  Minotv.  Curtis,  7  Mass.  444;  Hagerstown  Turnpike 
Road  v.  Creeger,  5  liar.  &  Johns.  122. 

In  the  case  from  10th  New  Hampshire  Reports,  cited 
supra,  it  was  said,  that  "the  alteration  or  transposition  of 
a  word  in  the  name  [of  a  natural  person]  frequently 
makes  an  entirely  different  name;  while  the  name  of  a 
corporation  frequently  consists  of  several  descriptive 
words,  and  the  transposition  of  them,  or  an  interpolation, 
or  omission,  or  alteration  of  sonic-  of  them,  may  make  no 
essential  difference  in  the  case." 

in  Smith  v.  Plank-road  Co.,  (30  Ala.  C63,)  we  said, 
"there  is  a  well-marked  distinction  between  a  misnomer, 
which  incorrectly  nanvis  a  corporation,  but  correctly  de- 
scribes it,  and  the  statement  in  the  pleading  of  an  entirely 
different  party." — See,  also,  McWalker  v.  Branch  Bank, 
3  Ala.  153:  Crawford  v.  Bank,  4  Ala.  313;  Smith  v.  Br. 
Bank,  5  Ala.  26;  Hancock  v.  Br.  Bank,  {6.440;  Snel- 
grove  v.  Br.  Bauk,  ib.  295;  Crawford  v.  Br.  Bank,  7  Ala. 
3«3;  Caldwell  v.  Br.  Bank,  11  Ala.  549;  Davis  v.  Branch 


OF  ALABAMA.  391 


Ala.  &  TVnn.  Rivers  Railroad  Co.  v.  Nabors  &  Gregory. 

Bank,  12  Ala.  463 ;  Com.  Bank  v.  Fieneli,  -21  Tick.  4SG; 
Angell  on  Corporations,  §§  98  a,  101,  645,  et  seq. 

The  name  of  the  plaintiff  below,  as  expressed  in  the 
act  by  which  it  was  incorporated,  is  the  "Most  Worship- 
ful Grand  Lodge  of  Ancient  Free-masons'  of  Alabama, 
and  its  Masonic  Jurisdiction."  The  charter  which  was 
issued  to  the  subordinate  lodge,  to  the  admission  of  which 
in  evidence  exception  was  reserved,  is  in  the  name  of 
"the  Grand  Lodge  of  the  State  of  Alabama,  "  is  directed 
to  certain  persons  by  name,  and  authorizes  them  "to  form 
themselves  into  a  regular  lodge  of  ancient  free-masons, 
by  the  name  of  Yorkville  Lodge  No.  131."  These  marks 
of  identification,  we  hold,  sufficiently  show  that  the  char- 
ter was  issued  by  the  "Most  Worshipful  Grand  Lodge  of 
Ancient  Free-masons  of  Alabama,"  and  the  only  variance 
consists  in  the  omission  of  some  words,  making  no  es- 
sential difference  in  the  name.-  We  think  the  corporation 
was  identified  by  words  sufficiently  descriptive,  to  let  it 
in  as  evidence;  and,  hence,  we  hold,  that  in  this  matter 
the  circuit  court  did  not  err. 

Affirmed. 


ALA.  &  TENN.  RIVERS  RAILROAD  CO.  vs. 
ABORS  &  Gi:K<;!>! 

I  ommoN  COt 

1.   What  proqf  it  mecessai  y  to  <tu 

tion  against  an   incorporated  rai  I  on  an  in- 

strument of  •svrilingexecuti   :  er,  which, 

(  of  ocrta;  a  !":'i)  I 

ipany,  states  that  I  i  on   the  conditions 

ited  in  the  resolutions  of  the  board  of  direct 
a  specified  day,    "and  i   on   tlie  minutes" — the  pb.in'ilF 

ther  under  the  common  paooey  counts,  or  ui 
a  special  count  on   the  contract,  without  proving 


302 SU PREME  COURT 

All.  &  Tenn.  Rivers  Railroad  Co.  v.  Nabors  &  Gregory. 

and  i  rros  of  the  loan,  either  by  the  production  of  the  resolutions 
of  the  board  of  directors,  or  other  competent  evidence;  and  the 
fact  that  the  resolutions  are  in  the  defendant's  possession,  does 
not  aft*  et  the  principle. 

Appkai  from  the  Circuit  Court  of  Dallas. 
Tried  before  the  Hon.  Nat.  Cook. 


This  action  was  brought  by  the  appellees,  and  was 
founded  on  two  instruments  of  writing,  executed  by  A. 
M.  Goodwin,  as  secretary  and  treasurer  of  the  Alabama 
and  Tennessee  Tfcivers  Railroad  Company,  acknowledging 
the  receipt  of  certain  notes  loaned  to  said  railroad  com- 
pany. The  notes  specified  in  one  of  the  instruments 
were  executed  by  one  J.  F.  Dennis,  and  were  therein 
acknowledged  to  have  been  received  of  him;  and  those 
specilied  in  the  other  were  executed  and  loaned  by 
Regill,  Roberts  &  Terrell.  The  instruments  were  in  the 
following  form : 

"Office  of  Alabama  and  Tennessee  Rivers      \ 
Railroad    Company.  | 

"Received,  Selma,  June  IG,  1856,  of  J.  F.  Dennis,  his 
two  note-  of  this  date,  for  five  hundred  dollars  each,  one 
six  months,  and  the  other  at  twelve  months,  each  with 
interest  from  date,  a3  a  loan  to  said  railroad  company, 
but  to  be  used  only  in  the  event  that  the  directors  pur- 
chase iron  in  Mobile  to  extend  the  railroad  to  the  other 
side  of  the  Coosa  river.  This  loan  is  made  on  the  con- 
dition's an  1  terms  stated  in  the  resolutions  of  the  board 
of  directors,  passed  June  13th,  1856,  and  recorded  on  the 
minutes.  «  a.  M.  Goodwin, 

"Secretary  and  Treasurer." 

The  complaint  contained  four  counts;  the  first  count 
being  in  these  words:  "The  plaintiffs  claim  of  the  Ala- 
bama and  Tennessee  Rivers  Railroad  Company  three 
thousand  dollars,  fur  this:  that  the  said  defendant,  on  the 
16th  June,  1856,  executed  to  James  F.  Dennis  an  instru- 
ment of*  writing  in  these  words,"  setting  out  the  instru- 
ment above  copied.     "And  the  plaintiffs  aver,  that  by 


OF  ALABAMA.  393 


Ala-  &  Tenn.  Rivers  Railroad  Co.  v.  Nabors  &  Gregory 


the  resolutions  of  said  board  oi  directors,  in  said  instru- 
ment mentioned,  the  said  defendant  was  authorized  to 
borrow  money,  and  the  same  was,  by  said  resolution, 
due  and  payable  on  the  1st  June,  1859,  bearing  interest 
from  the  date  of  thj  loan;  and  the  said  defendant,  on  the 
13th  April,  1858,  received  from  said  Dennis  the  money 
due  on  said  notes,  with  interest,  thereon,  and  applied  said 
money,  through  its  said  board  of  directors,  to  the  pur- 
chase of  iron  in  Mobile  to  extend  the  railroad  of  said 
company  to  the  east  side  of  the  Coosa  river, — that  being 
the  side  of  the  river  described  in  said  instrument  as  the 
pother  side  of  the  Coosa  river;'  which  said  sum  of  money, 
so  loaned  to  said  defendant,  is  still  due  and  unpaid;  and 
the  said  instrument  of  writing  was,  on  the  1st  January, 
1850,  duly  transferred  and  assigned  to  the  plaintiffs,  and 
is  their  property."  The  second  count  was  founded  on 
the  instrument  given  to  Regill,  Roberts  &  Terrell  for  the 
notes  loaned  by  them,  and  was  the  same  as  the  first,  mu- 
tatis mutandis.  The  third  count  claimed  three  thousand 
dollars,  "due  by  account  on  the  16th  Jun^,  1856,  to 
James  F.  Dennis,  for  so  much  money  loaned  by  him  to 
the.  defendant;  "  and  the  fourth  claimed  the  same  amount, 
as  being  due  by  account  to  Regill,  Roberts  k  Terrell,  for 
money  loaned  by  ti.em  to  the  defendant ;  each  count  con- 
tain" ng  also  an  averment  that  "said  account  is  the  prop- 
erty of  the  plaintiffs." 

On  the  trial,  as  appears  from  the  bill  of  exceptions, 
the  plaintiffs  proved,  by  several  witnesses,  that  the  sig- 
natures to  the  receipts  on  which  the  action  was  founded 
were  in  the  handwriting  of  said  (Joodwin  ;  that  said 
Goodwin  was  the  defendant's  secretary  and  treasurer,  and 
acted  as  its  general  agent  in  signing  similar  receipts ; 
that  a  public  meeting  was  held  in  the  city  of  Selma.  "for 
the  purpose  of  raising  money  for  said  railroad  company 
by  loan,  to  be  used  tor  the  purples  stated  in  said  receipts, 
which    loans    were    made  at    the  same  time,  and  for  the 

purposes,   as    mentioned    in    s;iid   receipts;"    that 

lies  were  made  at  said  meeting   by  several   directors 

of  the   company,  advocating  subscriptions  to  the  loan; 

26 


394  SUPREME  COURT 


Ala.  ^  Term.  Rivers  Railroad  Co.  v.  Nabors  &  Gregory. 


and  that  receipts  were  given  to  the  other  subscribers  sim- 
ilar to  those  .above  described.  On  this  evidence,  together 
with  proof  of  the  charter  of  the  railroad  company,  the 
court  allowed  the  plaintiff  to  read  the  receipts  to  the 
jury;  and  they  then  proved  an  endorsement  on  each  of 
said  receipts,  in  the  handwriting  of  said  Goodwin, 
acknowledging  payment  of  tfce  notes  therein  specified. 
This  being  all  the  evidence,  the  defendant  asked  the 
court  to  charge  the  jury,  that,  if  they  believed  the  evi- 
dence, they  must  find  for  the  defendant;  which  chc^rge 
the  court  refused  to  give,  and  the  defendant  excepted. 
The  refusal  of  this  charge,  and  the  overruling  of  the  de- 
fendant's objections  to  each  part  of  the  evidence  offered 
by  the  plaintiff,  to  which  exceptions  were  also  reserved 
by  the  defendant,  are  now  assigned  as  error. 

Alex.  &  Jno.  White,  for  appellant. — The  plaintiffs 
proved  the  existence  of  a  special  contract,  but  failed  to 
show  its  terms ;  consequently,  they  were  not  entitled  to 
recover,  either  under  their  special  count,  or  under  the 
common  counts. — Snedicor  v.  Leachman,  10  Ala.  332; 
Clarke  v.  Smith,  14  Johns.  32G;  Raymond  v.  BearnardT 
12  Johns.  275;  Tankersly  v.  Childers,  23  Ala.  7»1;  1  Chit- 
ty's  PI.  352,  n. 

Byrd  k  Morgan,  contra. — The  receipts  [show  on  their 
face  a  contract  for  the  loan  of  money  on  the  notes  there- 
in specified,  and,  taken  in  connection  with  proof  of  the 
payment  of  the  notes,  were  sufficient  to  authorize  a  re- 
covery by  the  plaintiffs.  In  the  absence  of  evidence  to 
the  contrary,  the  money  was-  due  immediately;  and  if 
the  terms  of  the  contract  were  varied  by  the  resolutions 
of  the  board  of  directors,  it  devolved  on  the  defendant, 
who  had  the  custody  of  the  resolutions,  to  show  that 
fact. 

R.  W.  WALKER,  J.— [June  17,  1861.]— The  two  in- 
struments offered  in  evidence,  after  acknowledging  the 
receipt  of  certain  notes  as  a  loan  to  the  defendant,  state 


OF  A  L  AP,  A  MA.       395 

Ala.  &  Tenn.  Rivers  Railroad  Co.  v.  NalSors  &  Gregory. 

that  the  "loan  is  made  on  the  condition  and  terms  stated 
in  the  resolutions  of  the  board  of  directors  passed  June 
13th,  1856,  and  recorded  on  the  minutes."  The  resolu- 
tions referred  to  were  not  produced, — the  failure  to  pro- 
duce them  was  not  accounted  for, — nor  was  there  any 
evidence  whatever  as  to  what  were  the  conditions  and 
terrns#f  the  loan  therein  set  forth  ;  and  the  question  now 
presented  is,  whether,  under  this  state  of  the  proof,  the 
plaintiffs  had  the  right  to  recover,  either  upon  the  special 
contract,  or  on  the  common  counts.  We  think  it  clear 
tii at  they  had  not. 

Where  the  existence  of  a  special,  un rescinded  contract 
is  disclosed  by  the  evidence,  the  plaintiff  must  show  its 
stipulations;  otherwise,  it  is  impossible  to  determine 
whether  he  has  a  right  to  recover.  This  plaiu  principle 
controls  the  present  case.  The  instruments  executed  by 
the  secretary,  on  behalf  of  the  company,  showed  upon 
their  face  that  they  did  not  contain  the  whole  of  the  con- 
tract between  the  parties,  but  that  a  part  of  it,  namely, 
the  terms  and  conditions  on  which  the  loan  was  made, 
was  set  forth  in  another  writing,  particularly  described 
and  referred  to.  In  the  very  nature  of  things,  the  right 
of  the  plaintiff's  to  recover  must  depend  upon  the  terms 
and  conditions  of  the  loan  ;  and,  in  the  absence  of  proof 
as  to  what,  those  terms  and  conditions  were,  the  suit  must 
fail.  This  is  different  from  a  general  loan,  without  any 
special  contract.  In  that  ease,  the  promise,  and  the  time 
of  re-payment,  would  be  fixed  by  legal  implication.  But 
no  such  implication  arises  in  favor  of  a  plaintiff*  who 
proves  that  there  wus  a  special  contract,  defining  the 
terms  and  conditions  of  the  loan,  but  fails  to  show  what 
that  contract  was. 

It  will  not  do  to  Bay,  that  it  devolved  upon  the  defend- 
ant, in  whose  possession  they  were,  to  produce  the  reso- 
lutions. It  was  for  the  plaintiffs  to  make  out  their  case; 
and  this  they  could  not  do,  without  showing  that  thedaj^ 
of  payment  had  arrived,  and  that  the  defendant  was  iu 
default;  and  whether  or  not  this  was  so,  depended  entirely 
upon  the  terms  and  conditions  of  the  loan.  —  Kerstede  v. 


SUPREME  COURT 


Ex  parte  Maxw  elF. 


Raymond,  10  Inda.  190,  (204;)  Whitford  v.  Tnten, 
1<>  Bingh.  305;  Sncdicor  v.  Leacbman,  10  Ala.  830;  Clarke 
v.  Bm'rtn,  14  Johns.  3:26;  1  Greenleaf's  Ev\  §  87. 

If  the  plaintiffs  had  proved  the  contract,  and  then 
proved  that  it  had  hecn  fully  performed  on  their  part,  so 
that  nothing  remained  to  he  done  but  the  re-payment  of 
the  money,  they  might  have  recovered  on  the  common 
counts.  But  this- was  not  done.  The  evidence  showejl 
the  existence,  but  not  the  stipulations  of  the  contract. 
Snedieor  v.  Leacbman,  supra. 

Judgment  reversed,  and  cause  remanded. 


Ex  Parte  MAXWELL. 

[APPLICATION   FOK  MANDAMUS  TO  PRORATE  COURT.] 

;  ',<///'/  of  ijru.ht  of  administration.- — The  failure  of  an  administra- 

tor to  give  bond,' as  required  by  the  order  appointing  him,  renders 
tin'  grant  of  administration  voidable  only,  and  not  absolutely 
void. 

Application  for  a  mandamus,  or  other  remedial  writ,  to 
the  probate  court  of  Wilcox,  to  compel  that  court  to 
grant  to  the  petitioner,  James  F.  Maxwell,  original  letters 
of  administration  on  the  estate  of  his  father,  James  Max- 
well, deceased,  who  died  some  time  in  the  year  1840, 
seized  and  possessed  of  real  and  personal  property  in  the 
county  of  Wilcox.  The  transcript  from  the  records  of 
said  probate  court,  which  was  made  an  exhibit  to  the  pe- 
tition, shows  that,  on  the  10th  February,  184G,  an  order 
was  made  by  said  court  in  the  following  words:  "It  is 
ordered  by  the  court,  that  Joseph  VaDevoort  be,  and  he 
is  hereby,  appointed  administrator  of  the  estate  of  James 
Maxwell,  deceased,  and  that  he  give  bond,  in  the  sum  of 
three  thousand  dollars,  for  the  ia.itl.ful  performance  of  the 


OF  ALABAMA.  397 


Ex  parte  Maxwell. 


duties  required  of  him  as  such  administrator."  On  the 
21st  February,  1860,  the  petitioner  applied  to  said  pro- 
court  for  the  grant  of  original  letters  of  administra- 
tion on  said  estate;  setting  forth  in  his  petition  his  right 
Le  administration,  and  alleging  "that  letters  of  ad- 
ministration have  never  been  granted  to  any  person  upon 
said  estate,  nor  bond  given,  nor  oath  of  ofli 
istrator  taken  by  any  person."  The  probate  court  dis- 
missed the  petition^  on  the  ground,  that  VaDevoort  had 
been  appointed  administrator  of  said  estate.  The  peti- 
tioner then  made  application  to  the  circuit  court  of 
Wilcox.  (Hon.  Xat.  Cook  presiding,)  for  a  mandamus  to 
the  probate  court;  insisting  that  the  grant  of  administra- 
tion to  VaDevoort  was  void,  because  he  had  never  given 
bond,  with  sureties,  as  required  by  the  statute  ami  the 
order  of  his  appointment.  The  circuit  court  refused  to 
grant  the  writ,  and  the  petitioner  now  renews  his  appli- 
cation to  this  court . 

Gjbo.  W".  (iayle,  for" the  motion. 

A.  J.  WALKER,  C.  J.— [March  19,  1801.]— Without 
inquiring  whether  the  giving  of  the  bond  by  VaDevoort 
would  lo  conclusively  presumed,  or,  if  it  would  not, 
whether  the  failure  to  give  the  bond  is  shown  by  the 
evuleuc  \  we  dispose  of  this  case  by  deciding,  that  the 
failure  to  give  the  bond  would  not  render  the  administra- 
tion void.  The  law  draws  a  distinction,  between 
ministrations  which  are  void,  and  those  which  are 
reportable,  or  revo  The   ;\int  of  administration  is 

not  void,  unlesa  there  was  a  want  pf  jurisdiction  to  make 
it.— Miller  v.  Joi  Ua.  -117:  Gayle  &  Pitts  v.  Black- 

hum,  1  .-  v.  Willard,  2  &as8.  120.     If  the 

i    the    subject-matter   of  the 
grant   o3  administration   in  the   absence  of  a  bond,  the 
ration  is  not  void,  but  simply  revocable,  or  void- 
able.    Ju  iwer  to  hear  and  determine  a 
el  if  the  court  had  authority  by  law  to  heal 

an  application  for  the  administration  in 


393  SUPREME  COURT 


Ex  parte  Maxwell. 


the  absence  6f  a  bond,  then  the  order  granting  the  ad- 
ministration is  coram judice,  and  not  void. — United  St. 
v.  Arredondo,  G  Peters,   709;  State  of  Rhode  Island  v. 
State  of  Massachusetts,  12  Peters,  719;  Grignon's  Lessee 
v.  Astor,  2  Howard,  338. 

The  giving  of  the  administration  bond  is  not  by  the 
law  made  a  condition,  upon  which  the  court  is  to  hear 
and  determine  upon  the  matter  of  an  application  for  ad- 
ministration. On  the  contrary,  the  giving  of  the  bond, 
by  way  of  qualifying  the  appointee  of  the  court,  must 
necessarily  be  posterior  to  the  hearing  and  determination 
upon  the  application.  The  language  of  the  law  is,  "In 
all  cases,  before  granting  letters  of  administration,  the  ad/nin- 
isirator  shall  enter  into  bond,"  &c. — Clay's  Digest,  221, 
§  3.  This  language  clearly  inplies,  that  there  is  to  be  an 
administrator;  that  the  court  is  to  act  upon  the  applica- 
tion, and  designate  its  appointee,  before  the  bond  is  given. 
This  is  etill  more  clearly  shown  by  the  condition  of  the 
bond,  prescribed  in  the  same  law,  as  follows:  "The  con- 
dition of  the  above  obligation  is  such,  that,  whereas  the 
above-bound  has  been  duly  appointed  administra- 
tor." &e.  Thus,  the  very  law,  which  requires  the  giving 
of  a  bond  before  the  grunt  of  letters  of  administration, 
declares,  in  prescribing  the  condition  of  the  bond,  that 
an  administrator  had  been  before  "duly,  appointed." 
The  intention  of  the  law,  doubtless,  is,  that  the  court 
shall,  immediately  upon  announcing  its  judgment  as  to 
the  appointment  of  an  administrator,  and  before  issuing 
letters  of  administration,  and  before  the  administrator 
performs  any  official  act,  require  the  bond  to  be  given ; 
and  this  view  of  the  statute,  more  nearly  than  any  other, 
gives  effect  to  all  its  words,  and  adopts  a  construction 
susceptible  of  practical  application. 

"We  admit,  that  it  is  difficult  to  reconcile  some  of  the 
expressions  of  the  opinion  in  Cleaveland  v.  Chandler, 
(3  St.  489,)  with  our  conclusion.  But  the  real  point  in 
that  case  was,  whether  an  executor  could,  under  our  law, 
as  he  might  have  done  under  the  common  law,  execute 
the  trust,  without  obtaining  from  the  proper  court  the 


OF  ALABAMA.  399 


Ex  parte  staxwbll; 


graut  of  letters  testamentary.  What  is  said  by  the 
court  as  to  the  necessity  of  the  executor's  qualification,  by 
taking  the  oath,  and  giving  the  bond  prescribed,  was 
produced  as  an  argument,  to  show  that,  under  our  system, 
it  was  necessary  that  an  executor  should  obtain  letters 
testamentary.  It  may  vevy  well  be  argued,  that  to  allow 
an  executor  to  act  without  the  grant  of  letters  testamen- 
tary, would  practically  annul  the  statute  requiring  bond 
and  oath;  and  that,  therefore,  the  rule  of  the  common 
law  was  changed  in  this  State.  But  that  argument  in- 
volves no  denial  of  the  validity  of  an  order  granting  ad- 
minis!  ration  without  the  requisite  bond  and  oath.  To 
allow  that,  decision  the  effect  as  an  authority  which  is 
claimed  for  it,  would  give  its  expressions  -an  effect  not  in 
the  mind  of  the  court  which  made  them,  and  altogether 
foreign  to  their  purpose.  In  the  case  ot  Savage  v.  Ben- 
ham.  (17  Ala.  119,)  the  validity  of  an  administration  was 
assailed,  upon  the  ground  that  the  administratrix  was  an 
infant  at  the  time  of  her  appointment,  and  could  not 
comply  with  the  statutory  requisition  as  to  giving  bond. 
The  court  held,  that  the  appointment  was,  at  most,  only 
voidable,  and  that  it  could  not  be  declared  void  in  a  col- 
lateral proceeding.  This  authority  is  very  much  in  point, 
and  is  entitled  to  great  consideration,  because  it  is  made 
in  reference  to  a  similar  question. 

In  the  recent  case  of  Gray's  Adm'rs  v.  Cruise,  (oG  Ala. 
i  the  appointment  of  Brewer,  unlike  the  appointment 
in  this  case,  was  conditional.  The  order  was,  that  he  be 
appointed  administrator  on  his  executing  and  filing  bond. 
The  condition  not  having  been  Complied  with,  it  was 
held,  not  that  an  appointment  actually  made  was  void, 
but  that  no  appointment  was  made.  Therefore,  the  ques* 
tiou  decided  in  that  case,  is  totally  unlike  that  which 
ari-i's  in  this. 

L  'living  to  the  decisions  in  other  States,  we  find  the 
proposition,  that  an  administration,  under  such  a  law  as 
ours,  is  not  absolutely  w>id,  well  sustained.  In  Palmer 
v.  Oakley,  (2  Douglass'  Mich.  Rep.)  it  is  maintained,  that 
a  guardianship,  granted  to  A  feme  covert,  who  is  incapable 


400  SUPREME  COURT 


Ex  parte  Nor  thing  ton. 


of  binding  herself  by  contract,  would  not  be- collaterally 
assailable,  notwithstanding  the  law  might  require  that 
guardians  should  execute  bonds. — See,  also,  Russell  v.  - 
Coffin,  8  Pick.  143.  In  New  York,  the  statute  required 
that  an  administrator  should,  before  receiving  letters, 
execute  a  bond  with  two  or  more  sureties;  yet  it  was 
cided  in  Bloom  v.  Burdick,  (1  Hill,  130,)  that  an  omission 
in  that  particular  did  not  render  an  administration  void. 
Dayton  on  Surrogates,  223;  2  Bradford's  Rep.  22.  See, 
also,  Janett  v.  State,  5  G-.  &  J.  27;  Ray  v.  Doughty, 
4  BJackf.  115;  Westcott  v.  Cady,  5  Johns.  Ch.  335. 

The  distinction  between  irregularities,  which  render  a 
judicial  proceeding  voidable,  and  the  absence  of  facts 
which  are  made  conditions  precedent,  was  long  since 
drawn  by  this  court,  and  has  been  since  steadily  main- 
tained.— Wyman  v.  Campbell,  6  Porter,  119;  Mathesou 
■  v.  Uearin,  29  Ala.  210.  The  failure  to  take  the  proper 
administration  bond  is  a  mere  irregularity,  or  error,  in 
the  proceedings  of  a  court  having  jurisdiction;  and, 
therefore,  the  administration  of  Joseph  "VaDevoort  wag 
valid  until  repealed,  and  the  petitioner  is  not  entitled  to 
an  original  and  primary  administration  upon  the  estate. 
If  the  former  administration  is  terminated,  by  death  or 
resignation,  an  administration  de  bonis  non  is  the  only 
proper  administration. 

Motion  refused. 


Ex  Parte  NORTIIING-TOK 

[  APPLICATION1  FOR  MANDAMUS  TO  CIRCUIT  COURT.] 

1.  Liability  of  lunatic  for  necessaries. — An  adult  person,  who  is  non 
compos  mentis,  is  liable  on  an  implied  contract  for  necesffvrieg 
furnished  him,  suitahlo  to  his  estate  and  condition  in  life;  and 
where  no  guardian  has  heen  appointed  for  him,  an  action  .for  the 


OF  ALABAMA.     ___ _401 

Ex  parte  Northingtohi 


value  of  such  necessaries  must  uecessarily  be  prosecuted  against 

him  personally. 
2.  How  lun  nd. — When   an  action  is  brought  against  an 

adult  person  who  is  no/i  compos  ifientis,  he  inuel  be  defended  by  an 
attorney,  to  be  appointed  by  the  court",  if  necessary  ;  and  if  the 
court  refu  s<    the  plaintiff  proceed  with  his  action,  "unless 

ho  first  have  a  guardian  appointed  by  the  probate  court,  and  no- 
tify the  -■  a  irdtan  of  the  p  I  will 
be  awarded  by  i!i«  OOUrt,  at  the  instance  of  the  plaintiff, 
to  compel  the  appointment  of  an  attorney  for  the  defendant. 

Application  by  William  EL.  Nbrthington,  asthe  execu- 
tor of  John  D«  Frolic k,  deceased;  for  a  mandahius,  proce- 
>,  or  other  appropriate  writ,  process,  or  order,  to  be 
directed  to  the  circuit  court  of  Autauga,  to  compel  that 
court  to  allow  the  petitioner  to  proceed  in  a  certain  cause, 
therein  pending,  in  which  the  petitioner,  as  executor  of 
said  Fralick,  was  plaintiff,  and  one  John  R.  Williams  was 
defendant.  It  appeared  from  the  transcript  which  was 
made  an  exhibit  to  the  petition,  that  said  Fralick  com- 
menced an  action  at  law  against  said  Williams,  by  ordi- 
nary summons  and  complaint,  on  the  25th  January,  1800, 
to  recover  the  sum  of  $150,  alleged  to  bo  due  for  the  use 
and  occupation  of  a  town  lot  in  Frattville  ;  that  at  the 
March  term,  1800,  it  was  suggested  ;  >urt,  that  the 

plaintiff  had  departed  this  life,  that  said  Northington  had 
been  appointed  and  qualified  as  hie  executor,  that  the  de- 
fendant had  been  declared  a  lunatic  by  the  probate  court 
Qf  Autauga,  and  that  he  had  no  "guardian;  that  there- 
upon said  Northington,  as  such  executor,  was  made  a 
party  to  the  suit,  am]  the  cause'  was  continued',  in  order 
thata guardian  might  be  appointed  for  the  defendant;  and 
that  at  the  next  ensuing  term,  (Hon.  iS'AT.  Cook  presi- 
ding.) as  shown  by  the  bill  of  exceptions,  the  following 
proceedings  were  had:  "When  the  canst:  was  regularly 
reached  and  called  for  trial,  tae  plaintiff  asked  for  a  judg- 
ment by  default,  With  a  writ  of  inquiry;  no  appearance 
having  been  entered  for  the  defendant,  and  no  plea  being 
filed  or  offered.  Thereupon,  Thomas  II.  Watts  e 
curice,  sted  to  the  cofcrt,  that  the  defendant  was  of 

unsound  mind   at  the  commencement  of  this  suit,  and 


402 SUPREME  COURT 

Ex  parte  Northington. 

had  since  been  declared  a  lunatic,  by  the  probate  court  of 
Autauga,  and  had  no  guardian.  The  truth  of  this  sug-' 
gestion  was  not  controverted.  It  was  proved,  also,  that 
the  defendant  had  no  guardian,  or  committee;  and  that  it 
was  shown  to  the  court,  at  the  last  term,  that  he  had  been 
declared  a  lunatic  by  the  probate  court  of  Autauga,  and 
had  no  guardian;  that  the  case  was  continued  at  that 
term,  in  order  that  a  guardian  might  be  appointed,  and 
that  no  guardian  had  yet  been  appointed.  On  this  state 
of  facts,  the  court  refused  to  give  or  enter  any  judgment 
for  the  plaintiff,  or  to  allow  him  to  proceed;  to  which 
the  plaintiff  excepted.  The  plaintiff  then  asked  the  court 
to  allow  him  to  put  his  case  to  a  jury,  and  to  prove  his 
cause  of  action  before  the  jury;  and  offered  to  prove  that 
his  cause  of  action  was  for  necessaries  furnished  by  his 
testator  to  said  defendant  and  his  family,  during  the  year 
1859,  which  were  suitable  to  their  rank  and  condition  in 
life,  and  were  worth  at  least  $100,  and  that  the  defend- 
ant was  about  forty  years  old  at  that  time.  On  this  state 
of  facts,  the  court  refused  to  hear  any  part  of  the  proof 
thus  offered,  or  to  allow  the  plaintiff  to  put  his  case  be- 
fore a  jury,  or  to  proceed  in  it,  unless  he  would  first  have 
a  guardian  appointed  by  the  probate  court,  and  notify 
such  guardian  of  the  pendency  of  this  suit,  and  also  re- 
fused to  appoint  a  guardian  ad  litem  for  the  defendant;  to 
which  several  rulings  and  decisions  of  the  court  the 
plaintiff  excepted." 

Goldthwaite,  Rice  &  Semple,  for  the  motion. — 1.  Upon 
the  plainest  principles  of  justice,  necessity,  and  humanity, 
the  contracts  of  lunatics,  for  necessaries,  or  things  suita- 
ble to  their  condition  in  life,  will  be  upheld,  and  enforced 
by  action  at  law,  as  if  the  lunatics  were  of  sound  mind. 
Richardson  v.  Strong,  13  Iredell,  106;  Hallett  v.  Oakes, 
1  Cushing,  296;  Tally  v.  Tally,  2  Dev.  &  Batt.  Eq.  887  ; 
Brown  v.  Jodrell,  14  Eng.  Com.  L.  196;  Chitty's  Medical 
Jurisprudence,  850,  note  z;  Baxter  v.  Earl  of  Ports- 
mouth, 5  Barn.  &  Cr.  170;  Ex  parte  Hastings,  14  Vesey, 
182;  Chitty  on  Contracts,  134. 


OF  ALABAMA.  403 


Ex  parte  Northington. 


2.  In  such  action,  "the  judgment  is  properly  rendered 
against  the  lunatic  himself." — Walker  v.  Clay,  21  Ala. 
797.  A  recoveiy  may  be  had,  before  a  commission  issued, 
or  guardian  of  any  kind  appointed. — Richardson  v.  Strong, 
13  Iredell,  106.  And  the  necessity  of  this  is  apparent, 
when  it  is  considered,  that  there  is  no  law  to  compel  any 
person  to  accept  a  guardianship  of  any  kind  for. a  lunatic. 


Watts,  Judge  &  Jackson,  contra. 

STONE,  J.— [June  28,  1861.]— That;  an  adult  person, 
who  is  of  unsound  mind,  can  become  liable  by  implied 
contract,  for  necessaries  suitable  to  his  estate  and  condi- 
tion in  life,  is  a  proposition  upheld  alike  by  reason  and 
authority.— Chitty  on  Con.  131-2;  Baxter  u*  Earl  of 
Portsmouth,  5  Barn.  &  Cr.  170;  Brown  v.  Jo'drell,  3  C. 
&B.  30;  Chit.  Med.  Ju.  350];  Hallett  v.  Oakes,  1  Cash. 
(Mass.)  296;  Tally  v.  Tally,  2  Dev.  &  Batt.  385;  Richard- 
son v.  Strong,  13  Ired.  106.  And,  at  least,  where  no 
guardian  has  been  appointed  for  such  adult  non  compos, 
the  suit  must,  in  the  nature  of  things,  be  prosecuted 
against  him  whose  estate  must  pay  any  judgment  that 
may  be  recovered.  -  Kernot  v.  Norman,  2  T.  R.  390; 
Nutt  vi  Verney,  4  T.  R.  120;  Chit.  Con.  131-2;  Brown 
on  Actions,  301;  Clarke  v.  Dunham,  4  Denio,  202; 
Walker  v.  Clay,  21  Ala.  797. 

[2.]  When  suit  is  brought  ngainst  a  person,  not  an 
idiot,  but  who  is  of  non-sane  mind,  the  rule  seems  to  be 
universal,  that  he  must,  if  an  infant,  be  defended  by 
guardian;  and  if  an  adult,  he  must  be  defended  by.  an 
attorney,  to  be  appointed  for  the  purpose  by  the  court,  if 
necessary.  There  is  do  authority  for  the  appointment  of 
a  guardian  ad  litem,  to  defend  in  such  a  case  as  this;  and 
the  court  should  not  proceed  with  the  trial,  without  hav- 
ing the  defendant  represented  by  an  attorney. — Beverly's 
•till  Rep.  124;  1  Chitty'a  PI.  427-8 ;  Shelf,  on  Lu- 
nacy, ,112:  Cameron  v.  Potttnger,  3  Bibb,  11;  Faulkner 
v.  McClure,  18  Johns.  134;  Robertson  v.  Lain,  19  Wend. 
;  1  Tidd's  Pr.  92-3. 


404 SUPREME  COURT 

Sterrett's  Executor  v.  Kaster. 


The  circuit  court  did  not  err  in  refusing  to  appoint  a 
guardian  ad  litem  for  the  defendant,  nor  in  refusing  to  al- 
low the  plaintiff  to  proceed  with  the  proof  in  his  eause, 
in  the  absence  of  counsel  for  the  defendant.  But  in 
refusing  to  allow  the  plaintiff  to  proceed,  "unless  he 
would  first  have  a  guardian  appointed  by  the  probate- 
court,  and  notify  such  guardian  of  the  pendency  of  the 
suit,"  the  circuit  court  erred.  The  defendant  was  an 
adult;  and  it  was  the  right  of  the  plaintiff  to  proceed, 
after  having  an  attorney  appointed  for  the  defendant. 

A  rule  is  ordered  to  the  judge  presiding  in  the  circuit 
court  of  Autauga  county,  to  show  cause  why  a  mandamits 
shall  not  issue,  to  compel  the  appointment  of  an  attorney 
for  the  defendant. 


STERRETT'S  EXECUTOR  vs.  KASTER. 

[trespass  for  injuries  to  personal  Property.]  . 

1.  General  oLjection  to  evidence.— A  general  objection  to  evidence,  a 
part  of  which  is  legal,  may  be  overruled  entirely. 

2.  Evidence  in  mitigation  of  damages. — On  the  execution  of  a  writ  of 
inquiry,  after  judgment  uy  default,  in  trespass  for  taking  personal 
property,  the  fact  that  the.  property  was,  at  and  before  the  levy  of 
the  execution,  which  constituted  the  trespass  complained  of,  in 
the  possession  of  the  defendant  in  execution,  is  competent  evidence 
for  the  defendant,  in  mitigation  of  damages,  as  tending  to  show 
that  he  acted  in  good  faith  in  having  the  levy  made. 

3.  Same. — In  such  case,  the  judgment  by  default  estops  the  defend- 
ant from  showing,  even  in  mitigation  of  damages,  that  the  plain- 
tiff had  not  s  icii  a  title  as  would  authorize  a  recovery  ;  yet  he  may 
show,  in  mitigation,  that  the  plaintiff  was  not  the  owner  of  the 
property,  as  that  fact  is  not  necessarily  inconsistent  with  ths, 
plaintiff's  right  to  recover. 

4.  Validity  of  contract  witji  slave. — Although  the  sale  of  any  article  to 
a  slave,  without  the  consent  of  the  master,  specifying  the  article, 
is  a  penal  offense  under  the  laws  of  this  State;  yet,  if  the  contract 


OF  ALABAMA. 405 

Sterrett's  Executor  v.  K.ister. 


has  boon  fully  executed,  end  the  property  delivered  to  the  slave, 
it  does  not  lie  in  the  mouth  of  a  third  person,  when  sued  by  tho 
master  for  a  trespass  to  tho  property,  to  allege  the  illegality  of  tho 

contract. 

Appeal  from  the  Circuit  Court  of  Wilcox. 
Tried  before  the  Hon.  Nat.  Cook. 

This  fiction  was  brought  by  F.  Jv.  Beck,  as  the  executor 
of  D.  W.  Sterrett,  deceased,  against  Henry  Raster,  to 
recover  damages  for  the  tortious  taking  of  certain  per- 
sonal chattels,  consisting  principally  of  articles  of  house- 
hold furniture.  On  the 'execution  of  a  writ  of  inquiry, 
after  judgment  by  default,  as  the  bill  of  exceptions  states, 
"the  plaintiff  proved,  that  the  goods  mentioned  in  the 
complaint  were  worth  forty  dollars;  that  the  defendant, 
who  had  an  execution  against  one  Tucker,  had  said  goods 
levied  on  and  sold,  under  said  execution,  as  the  property 
of  said  Tucker,  before  the  commencement  of  this. suit, 
and  that  said  goods  brought  forty  dollars  at  said  sale. 
The  defendant  theu  offered  to  prove,  in  mitigation  of 
damages,  that  said  Tucker  was  in  the  possession  of  said 
goods,  at  and  before  the  levy  of  said  execution,  and, 
whilst  thus  in  possession  of  them,  claimed  them  as  his 
own  property.  The  plaintiff  objected  to  this  evidence, 
as  illegal  and  irrelevant,  and  excepted  to  its  admission  by 
the  court  against  his  objection.  The  defendant  then  in- 
troduced another  witness,  and  offered  to  prove  by  him,  in 
mitigation  of  damages  only,  that  prior  to  the  sale  of  said 
goods  under  execution  against  said  Tucker,  and  at  the 
time  of  said  levy  and  sale,  said  Tucker  kept  a  restaurat 
in  the  town  of  Camden,  and  had  said  goods  in  his  posses- 
sion, using  them  in  and  about  his  said  business,  and 
claiming  them  as  his  own  property.  The  plaintiff  ob- 
d  to  the  admission  of  this  evidence,  and  excepted  to 
its  admission  by  the  court  against  his  objection.  The 
proof  shown],  also,  that  whilst  said  Tucker  was  thus 
ping  said  restaurat,  a  negro  man  slave,  named  Abb, 
the  property  of  plaintiff's  testator,  was  also  in  said 
restaurat,  exercising  the  ordinary  duties  of  a  waiter  and 


406  SUPREME  COURT 


Sterrett's  Executor  v.  Raster. 


servant  about  such  establishments.  The  plaintiff  offered 
to  prove,  that  said  slave  Abb,  before  said  goods  went  into 
the  possession  of  said  Tucker,  had  purchased  them,  and 
paid  his  own  money  for  them,  and  they  had  been  deliv- 
ered to  him  ;  but  did  not  offer  to  prove,  that  said  goods 
were  purchased  by  said  slave  by  and  with  the  consent  of 
his  master,  verbal  or  written,  expressing  the  articles  per- 
mitted to  be  bought,  in  conformity  with  the  requisitions 
of  the  statute  in  such  case  made  and  provided.  This 
evidence  the  court  excluded  from  the  jury,  on  the  defend- 
ant's objection,  and  the  plaintiff  excepted." 

The  court  charged  the  jury,  in  substance,  that  the  de- 
fendant had  a  right  to  show,  in  mitigation  of  damages, 
that  the  plaintiff*  was  not  the  owner  of  the  goods  at  the 
time  the  action  was  brought;  and  that  if  they  believed, 
from  the  evidence,  that  the  goods  were  not  the  property 
■of  the  plaintiff  at  the  time  of  the  levy  and  sale  under 
■execution,  they  must  still  find  for  the  plaintiff,  but  might 
give  *him  no  more  than  nominal  damages;  to  whi«*h 
charges  the  plaintiff  excepted. 

The  rulings  of  the  court  on  the  evidence,  and  the 
charges  given  to  the  jury,  are  now  assigned  as  error. 

Byrd  &  Morgan,  for  appellant. — 1.  A  judgment  by  de- 
fault is  an  admission  of  record,  which  estops  the  defendant 
from  pleading  to  the  merits,  or  from  showing  that  the 
title  to  the  propert}'  is  not  in  the  plaintiff. — Ewing  v. 
Peck  &  Clarke,  17  Ala.  339;  Bryant  v.  Sheeley,  5  Dana, 
530;  1  Tidd's  Practice,  562-4,  and  notes.  The  declara- 
tions of  Tucker  showed  title  in  himself,  and,  for  that 
reason,  ought  to  have  been  excluded. — McBride  v.  Thomp- 
son, 8  Ala.  G52;  Abney  v.  Kingsland,  10  Ala.  355;  Dar- 
ling v.  Bryant,  17  Ala.  10. 

2.  When  property  is  bought  by  a  slave,  and  delivered 
to  him  by  the  vendor,  the  title  vests  in  the  master,  and 
he  may  recover  it  by  suit,  although  his  prior  consent  to 
the  contract  was  not  given.  The  bringing  of  the  action 
shows  an  election  by  him  to  ratify  the  contract ;  and 
third  persons  cannot  be  heard  to  saj',  that  the  contract 


OF  ALABAMA.  407 

St.-rrctt's  Executor  v.  Krister. 


was  illegal  on  the  part  of  the  vendor. — Brandon  v.  J'.  & 
M.Bank,  1  Porter,  320;  Trotter  v.  Blocker,  6  Porter,  269  ; 
Stanley  v.  Nelson,  28  Ala.  514;  Bryant  v.  Sheeley, 
5  Dana,  5o0. 

Watts,  Judge  &  Jackson,  contra. — 1,  In  the  action  of 
trespass,  the  title  to  the  property,  the  right  of  possession, 
and  the  actual  possession,  may  all  be  involved  ;  and  a 
judgment  by  default,  while  it  estops  the  defendant  from 
controverting  the  plaintiff's  right  to  recover,  is  not  an 
admission  that  be  had  the  title  to  the  property,  nor  even 
that  lie  had  the  rightful  possession  :  on  the  contrary,  the 
extent  of  the  plaintiff's  interest  is  a  proper  subject  for 
the  consideration  of  the  jury  in  determining  the  amount 
of  his  damages. — Sedgwick  on  Damages,  475,  and  notes.' 

2.  The  Contract  by  which  the  slave  acquired  the  goods, 
being  prohibited  by  statute,  was  absolutely  -  void,  and 
vested  no  title  in  the  master;  and  if  he  could  impart  any 
validity  to  it  by  his  subsequent  ratification,  his  election 
to  ratify  it  ought  to  have  been  manifested  while  the  goods 
were  in  the  possession  of  the  slave. — Stanley  v.  Nelson, 
28  Ala.  514;  Slfanklin  v.  Johnson,  0  Ala.  271  ;  Sully  v. 
Beatty,  L  Bay,  258< 

R.  W.  WALKER,  J.— [Feb.  15,  18G1.]— The  familiar 
rule,  that  a  general  objection  to  evidence,  a  part  of  which 
is  legal,  may  be  overruled  entirely,  disposes  of  the  first 
two  exceptions.  A  part  of  the  evidence  covered  by  each 
of  these  exceptions  was,  that  Tueker  was  in  possession  of 
the  goods,  at  and  before  the  levy  of  the  execution  ;  and 
this  taet.  as  it  tended  to  show  that  the  defendant  acted  in 
good  faith,  in  having  the  goods  seized  and  sold  as  the 
property  of  Tucker,  was  competent  evidence  upon  the 
question  of  damages.  —  Sedgwick  Dam,  528-ib 

[;}.]  After  ft-  judgment  by  default,  the  defendant  has 
not  the  legal  right  to  plead  to  the  merits  of  the  action. 
Ewing  v.  Peck  k  Clarke,  17  Ala.  8d&  But,  in  actions 
sounding  in  damages,  after  judgment  by  default,  writs  of 
inquiry  are  necessary  to  ascertain  the.  amount  of  injury 


SUPREME  COURT 


Sterrett's  Executor  v.  Kaster. 


;  and  upon  the  execution  of  these  writs,  matters  in 
mitigation  on  the  one  hand,  and  of  aggravation   on  the 

other,  become  the  very  gist  of  the  inquiry.  It  is  doubt- 
less true,  that  it  is  not  competent  for  the  defendant,  after 
judgment  by  default,  to  show,  even  in  mitigation  of 
damages,  a  state  of  facte  which  is  inconsistent  with  the 
plaintiff's  right  to  recover  at  all,  or  which  would  have 
been  a  good  plea  in  bar  of  the  action  ;  as  for  example,  in 
the  action  of  trespass,  that  the  plaintiff  had,  at  the  time 
of  the  taking  or  injury,  neither  the  possession,  nor  the 
right  to  the  possession  of  the  goods. — Garrard  v.  Dollar, 
4  Jones'  L.  (N.  C.)  175  ;  Long  v.  Wortham,  4  Texas,  381. 
But  evidence  showing  that  the  plaintiff  was  not  the 
owner  of  the  goods,  is  not  necessarily  inconsistent  with 
the  fact,  that  he  had  either  the  possession,  or  the  right  to 
the  possession,  (which  is  all  the  title  necessary  to  support 
the  action  ;)  and,  as  the  extent  of  the  injury  sustained  by 
the  plaintiff  may  depend,  very  materially,  upon  the  ex- 
tent of  his  interest  in  the  property,  evidence  that  he  was 
not  the  owner  is,  on  the  one  hand,  admissible  for  the  de- 
fendant; and  evidence  that  he  w&s  the  owner  is,  on  the 
other,  admissible  for  the  plaintiff.  The  admission  of  evi- 
dence that  the  plaintiff  was  not  the  owner,  does  not 
impair  the  effect  of  the  judgment  by  default,  as  an 
estoppel  upon  the  question  of  his  possessory  right,  but 
simply  serves  to  disclose  the  extent  of  the  injury  inflicted 
upon  him  ;  for  he  who  has  a  bare  possessory  right,  is  not 
entitled  to  the  same  measure  of  damafres,  as  he  who  has 
the  absolute  property. — Sedgwick  Dam.  482-3,  530; 
Brierly  v.  Kendall,  10  Eng.  L.  &  Kq.  319;  Jones  v. 
Lowell,  35  Maine,  53S;  Gomptdn  v.  Martin,  5  Rich.  L.  14. 
[4.  J  A  slave  cannot  be  the  owner  of  property  :  all  his 
acquisitions,  whether  by  gift,  or  by  the  earnings  of  his 
labor,  belong  to  his  master.  It  is  true  that,  under  our 
laws,  the  sale  of  any  article  to  a  slave,  without  the  con- 
sent of  the  master,  specifying  the  article,  is  a  penal 
offense.  But,  where  the  contract  has  been  fully  executed, 
and  the  property  delivered  to  the  slave,  it  is  clear  that,  as 
respects  third  persons,  the  property  becomes  at  once  the 


OF  ALABAMA.      .  409 


Brooks  v.  Ruff. 


property  of  the  master;  and  no  subsequent  act  or  contract 
of  the  slave,  without  the  master's  express  or  implied  con- 
sent, can  divest  the  latter  of  his  title.  In  does  not  lie  in, 
the  mouth  of  a  third  person,  who,  without  such  consent 
of  the  master,. purchases,  or  takes  possession  of,  property 
which  has  been  sold  and  delivered  to  a  slave,  to  say  that 
the  slave  got  possession  of  the  property  by  a  contract 
which  the  law  declares  illegal  as  to  the  seller. — Bryant  v. 
Sheeley,  5  Dana,  530;  Brandon  v.  Huntsville  Bank,  1  Stew. 
320;  viregg  v.  Thompson,  2  So.  Ca.  Const.  Ct.  R.  332; 
Gist  v.  Toohey,  2  Rich.  L.  425;  Cobb  on  Slavery, 
§§  258,  261-4,  268.  It  follows,  that  the  court  erred,  in 
rejecting  the  evidence  which  was  offered,  to  show  that 
the  goods  had  been  purchased  and  paid  for  by  the  slave 
Abb. 

AVhat  we  have  said  will  furnish  a  sufficient  guide  to  the 
court  below,  on  another  trial,  as  to  the  other  questions 
presented  by  the  record. 

For  the  error  pointed  out,  the  judgment  must  be  re- 
versed, and  the  cause  remanded. 


BROOKS  vs.  RUFF. 

[trover  for  conversion  or  horse.] 

1.  Extinguishment  ar.d  subsequent  assignment  of  mortgage. — Where  the 
condition  of  a  mortgage  is,  tli.it  the  mortgagor  shall  save  harmless 
th'e  mortgagee  against  liability  ns  his  surety  on  a  not&  due  to  a 
third  person,  the  condition  is  performed,  when  the  mortgagor  pro- 
cures tho  cancellation  of  the  note,  and  the  substitution  of  a.  new 
note  in  its  stead,  with  a  different  surety  ;  and  the  mortg 
thereby  extinguished,  it  cannot  then  b<>  assigned  to  the  surety  on 
tip'  ii'  w  note,  for  his  indemnification,  even  though  the  assignment 
be  made  with  the  assent  of  the  mortgagor.Jbr  valuable  considera- 
tion, and  contemporaneously  with  the  cancellation  and  substitu- 
tion of  the  ui 
27 


410  _'_  PREME 

Urook>  v.  Ruff 


theraort  tinst  liability  on  n  note  as  surety  for  1 1 1 « 

mort  gor,  being  afterwards  extinguished  by  the  cancellation  ol 
the  npte,  and  (ho  substitution  »?  n  new  note  in  its  stead,  with  si 
different  surety  :  a  verl  tnent  between    the  inori 

fee,  and  the  surety  on  the  new  note,  made  -  ram 

ously  with  the  cancellation  and  substitution  of  tlie   notes,  to 
effect  that,  the  in-.,  iall    stand   as   a  security  for  the  su 

con^  val'd  mortgage  as  between  th 

Appeal  from  the  Circuit  Court  of  Lownd- 
TrlGd  befote  tile  lion.  Xat.  Cook. 

This  aotion  was  brought  by  Ransom  C.  Ruff, 
Andrew  J.  Brooke,  tq  recover  damages  for  the  convei 
pf  a  horse;  and  was   commenced   oh   the  2d  Septem 
-.     The  plaintifTclaimed  the  horse  under  a  mortg 
one  S.  P.  Brownlie,   and   the   defendant    Held   him 
imder  n  purchase   from  said  Brpwnlie.,    It  appeared  that 
Brownlie,  in  April,  185$,   executed  a  mortgage   on  the 
borse,  with  other  property,  to  one  Samuel  Ivey  ;  the  con- 
dition of  which  was,  that  he  should  "save  the  said  I 
har;<  rainst  liability  on  a  promissory  note  !'■ 

payable  toRahdall  Cheek,  and  due  the  1st  January,  1 
wlii'-'  aid  Ivey  had  signed  aa  the  surety  ot  said  Brown- 
lie; and  this  mortgage  w*as  duly  proved  and  recorded. 
Ivcy  '-  barrfe  uneasy  about  his  liability  on  the  note,  and 
sent  an  agent  to  Brownlie,  proposing  to  make  some  new 
arrangement  about  the  matter.  Brownlie  offered  to  let 
him  I  tve  a  negro  woman  and  child,  at  the  price  of  §1 1 
whirl:  [vey  was  willing  to  give;  but  the  title  to  the  ne- 
groes waa  in  Ruff,  the  plaintiff,  who  was  not  willing  to 
let  Ley  have  them  at  that  price,  but  said  that  he  pre- 
ferred to  t.:ike  them  himself.  Ivey  then  insisting  thathe 
should  be  released  from  liability  on  the  debt  to  Cheek, 
"it  was  agreed  among  them,  that  Ivey  should  be  released 
that  Raff  should  become  bound  to  Cheek  for  the  debt, 
and  that  Ivey  should  assign .  the  mortgage  to  Rufh 
Brownlie,  Ivey  and  Ruff  assented  to  this  ;  aud  Cheek 
being  willing  to  take  Ruff  instead  of  Ivey,  the  papers 
were  exeouted  in  pursuance  of  this  agreement."     Ivey's 


MA.       

■>oks  v.  Ruff, 
note  to  Check  was  then  delivered  up  to  him;  a  bill  of 
exchange,  in  lieu  of  it,  was  drawn  by  Ruff,  and  c .         ed 
by  Brownlie;  and  Ivey  endorsed  on  the  mprl  as- 

inent  in  the  following  words:     "For  vain.'  r<  '-rived, 
I  hereby  transfer  this  mortgage,  with  all  tl  h 

.it  secures  to  me  as  §.  i'.  Brownlie's  security.  b 

'ied,  to  Ransom   C.  Ruffj  of  said  county  and  State,. 
In  wit:. ess  whereof"  &o.     These  transactions  were  had 
on  the  5th  January,  1856,  as  shown  by  the 
.it.     The  record  does  no!,  state  any 
connected  with  the  defendant's  purchase  of  the    horse. 
The  bill  of  exchange  was  paid  at  maturity,  by  E 

'he  court  charged  the  jury,   that   if  the  red, 

front  the  evidence,  that  Ivey,  the  mortgagee,  assigned  the 
Kjorl  gage  to   plaintiff,  with  the  asscut  of  Br-  tn'd 

because  plaintiif  had  agreed  to  become  bound  I  -         sek 
in  the  place  of  Ivey,  and  that  he  did  bee-   q 

the  consideration  for  tb  uneut  oi  Lort- 

gage  was  good  and  valid,  and  the  assign  me:;  I  to 

plaintiff  all  the  rights  and  equities  of  ly< . 

,  ed,   from  the   <•.  .  that  plain' 

paid  the  debt  to  Cheek,  then,  so  soon  as  1  e  did   . 
this,  lie  had  a  right  to  the  possession  of  the  h>  . 

I;  arid  that. if  the  proof  showed  that  plaintiff  had 
paid  Cheek  before  suit  brought,  and  that  the 
in  his  ;;  ter  this  payn: 

er  him,  1 1 
Tin  .  to  whi  •  A'.epted,  ;  ;    - 

signed  as  en 

.  Ci  . 
cell   tion  ol   the  note  on   which  1  m  the 

■  f  the  bill  of 

-Bonhi  • 
Bamner  v.  Ba<  h  .•'.  ler,  3  )mll\ 


412  SUPREME  COURT 


Brooks  v.  Ruff. 


Tiios.  Williams,  contra. — The  assignment  of  the  mort- 
gage was  contemporaneous  with  the  cancellation  of  the 
note  ami  the  substitution  of  the  bill  of  exchange,  and 
was  for  valuable  consideration;  and  the  mortgagor  was  a 
party  to  the  agreement.  All  the  elements  of  a  valid  con- 
tract are  shown  ;  and  the  defendant  is  not  in  a  position- 
to  impeach  it,  as  he  does  not  show  how  or  when  his  rights 
accrued. 

A.  J.  WALKER,  C.  J.— [Feb.  11,  I861.]-The  mortgage 
in  this  case  was  an  assignment,  upon  a  specified  condition ; 
and  upon  the  performance  of  the  condition,  the  mortgage 
was  extinguished,  and  the  title  revested  in  the  mortgagor. 
This  proposition  necessarily  results  from  the  fact,  that 
the  mortgage  is  but  a  security  for  the  discharge  of  a  par- 
ticular debt  or  duty  ;  and  it  is  well  recognized  in  the  law- 
books.— 1  Hilliard  on  Mort.  447;  Gunn  v.  Young, 
2  St.  kl\  160;  Deshaza  v.  Lewis,  5  St.  &  P.  91.  The 
condition  of  the  mortgage  was,  to  save  harmless  the 
surety  of  the  mortgagor.  This  the  mortgagor  unques- 
tionably did,  when  he  obtained  a  cancellation  of  the  note, 
upon  which  the  mortgagee  was  his  surety,  and  substitu- 
ted a  bill  of  exchange,  with  a  different  surety,  and  ob- 
tained a  discharge  of  the  mortgagee.  The  mortgage  was 
thus  extinguished;  and  being  extinguished,  the  assign- 
ment of  it  could  not  resuscitate  it,  although  the  assign- 
ment might  be  upon  a  valuable  consideration.  The  cases 
of  Bonham  v.  Galloway,  (1-3  III.  68,)  Mead  v.  York, 
(2  Selden,  449,)  Abbott  v.  Upton,  (19  Pick.  434,)  cited 
upon  the  brief  of  appellant's  counsel,  conclusively  sup- 
port that  position. — See,  also,  1  Hilliard  on  Mort.  461-2; 
Sumner  v.  Bachelder,  30  Maine,  35.  Even  the  consent  I 
of  the  mortgagor,  that  the  mortgage  should  be  assigned, 
could  not,  of  itself,  revive  it.  The  charge  given  by  the 
court  Avas  erroneous,  because  it  predicated  the  plaintiff's 
right  of  recovery  upon  the  assignment,  for  a  valuable 
consideration,  of  au  extinguished  mortgage,  with  the  con- 
sent of  the  mortgagor. 

[2.]  We  see  no  reason  why  a  mortgage  of  personalty,  , 


OF  ALABAMA.  All 


Ward  v.  Neal. 


valid  inter  partes,  may  not  be  made  by  verbal  contract. — 
2  Hilliard  on  Mort.  520;  Morrow  v.  Turney,  35  Ala.  136. 
Such  a  mortgage  would,  by  virtue  of  our  registration 
statute,  be  void  "as  to  purchasers  for  a  valuable  consid- 
eration, mortgagees,  and  judgment  creditors  without  no- 
tice," (Code,  §  1288;)  but  we  think  it  would  be  valid  as  to 
the  parties,  and  others  not  protected  by  that  statute. 
The  evidence  conduces  to  show,  that  there  was  a  verbal 
agreement,  that  the  mortgage  should  stand  as  a  security 
to  the  plaintiff..  This  agreement,  if  it  existed,  would 
amount  to  a  verbal  mortgage  in  favor  of  the  plaintiff, 
and  would  avail  against  the  defendant,  uuless  he  could 
show  that  he  was  one  of  the  persons  protected  by  the 
registration  law,  or  unless  his  interest  accrued  be- 
fore the  makiiiii  of  the  verbal  mortgage.  The  evideuce 
does  not  show  that  the  defendant  is  oue  of  those  persons. 

What  we  have  already  said  will,  probably,  be  sufficient 
to  guide  the  court  upon  a  future  trial,  and  we  need  not 
consider  farther  the  questions  presented. 

Reversed  and  remanded. 


WARD  vs.  XEAL. 

[action  fok  dahages  fok  obstruction  op  ancient  LIGHTS.] 

1.  Easenwnt  foundzd  on  adverse  '. — The  English  doctrine,  that 

a  right  to  have  ancient  windows  unobstructed  eafr  arise  from  mere 
uninterrupted  enjoyment  for  tin-  period  prescribed  by  the  Btatute 
of  limitations  as  a  bar  to  actions  for  the  recovery  of  land,  dot 
prevail  in  this  country. 

Appeal  from  the  Circuit  Court  of  Madison. 
Tried  before  the  lion  >s.  \).  Hale. 

Tins  case  was  before  this  court,  at  its  January  term, 
1860,  on  appeal   from   the  judgment  of  the  circuit  eourt 


414  SUPREME  COURT 


Ward  v.  Weal. 


sustaining  a  demurrer  to  the   complaint;  fthft  jbhe 'judg- 
ment of  the  circuit  court  was  then  reversed,  and  the  ci 
remanded. — See  35  Ala.  G02.  The  action  was  brought.by 

>h  Ward,  against  George  W".  Neal,  to  recover  dama- 
ges for  an  obstruction  of  the  plaintiff's  'ancient  windows; 
and  a  tria>1  was  had,  after  the  reversal,  on  the  plea  of  not 
guilty,  and  the  following  agreed  fjacts:  "Plaintiff  has 
title  to,  and  is  possessed  of,  a  certain  house  and  tot  in 
the  town  of  Huntsville;  and  he  and  defendant  are  adja- 
cent proprietors.  Plaintiff's  said  house-  has  been  built, 
and  situ,  tod  as  it  was  at  the  time  of  the  injury  com- 
plai  ted  6 ..  for  twenty  years;  and  during  all  that  time 
the  light  and  air  had  passed  through  said  windows  into 
his  Kouse.  His  possession  has  been  quiet,  exclusive,  and 
upd  I.     The  fence  between  -the  lots  of  plaintiff  and 

defendant  was  built,  upon  -a  line  which  had  been  agreed 
upon  by  preceding  proprietors,  about  the  year  1836  or 
1838,  and  was  situated  live  or  six  feet  from  plaintiff's 
Louse,  and  about  eighty  feet  from  defendant's  house;  and, 
during  all  that  time,  had  been  a  common  plank  fence,  six 
feet  six  inches  high,  made  of  boards  nailed  upright,  at 
I  an  interval  of  one  inch  between  them.  The  old  line, 
to  this  compromise  line,  rah  farther  from  plaintiff's 

se.  The  distance  from  the  ground,  to  the  top  of  the 
windows  in  plaintiff's  house,  is  ten  feet  ten  inches;  and 
from  the  ground  to  the' bottom  of  the  windows,  five  feet 
iive  inches.  About  the  loth  September,  1856,  the  de- 
fendant oivcted  a  close  battery  of  weather  boarded  planks 
1  fence,  but  on  his  own  side  of  it,  about  four 
teei:  feet  high,  which  excluded  the  light  and  air  from 
plaintiff's  said  windows.     This  action  was  commenced  on 

23d  January,  1858.  If,  on  these  facts,  the  plaintiffs 
entitled  to  recover,  the  damage  shall  be  assessed  at  $25." 
On  these  facts,  the  court  charged  the  jury,  that  the  plain- 
tiff was  not  entitled  to  recover;  to  which  charge  the 
plaintiff  excepted,  and  he  now  assigns  the  same  as  error. 

Piiela'  :lan,  for  appellant. 

"V  ira. 


OF  ALABAMA.  415 


Ward  v.  Ncal. 


STONE,  J.— [July  11,  1861.]— The  present  suit  is  for 
obstructing-  ancient  lights ;  and  the  plaintiff  found 
right  of  recovery,  not  upon  grant,  but  upon  his  uninter- 
rupted user  of  the  easement  for  a  period  which  would  bar 
a  recovery  in  ejectment  against  a  trespasser.  lie  makes 
noother  proof  than  uninterrupted  enjoyment.  Will  this, 
without  more,  ripen  into  a  title  by  prescription?  Under 
trie  English  decisions,,  ll  would ;  but,  in  the  .American 
States,  the  English  doctrine  haS  not  been  adopted,  save 
by  a  few  of  the  States. 

Speaking  of  the  English  doctrine,  theYsupreme  court 
of  New  York,  in  Parker  v.  Foote,  (13  Wemhdl, 
said:  "-The  learned  judges  who  have  laid.down  this  doc- 
trine, have  not  told  us  upon  what  principle  or  analogy  in 
the  law  i!  can  be  maintained.  They  tell  us,  that  a  man 
may  build  at  the  extremity  of  his  own  land,  and  that  he 
may  lawfully  have  windows,  looking  one  upon  the  lands 
of  his  neighbor.— 2  Earn.  &  Cress^'OSC:  3  ib.  332.  The 
reason  why  he  may  lawfully  have  such  windows,  must  be, 
because  he  does  his  neighbor  no  wrong;  and,  indeed,  so 
it  is  adjudged,  as  we  have  already  seen;  and  yet,  some 
how  or  other,  by  the  exercise  of  a  lawful  right,  in  his 
own  land,  for  twenty  years,  he  acquires  a  beneficial  inter- 
est in  the  land  of  his  neighbor.  The  original  p; 
is  still,  seized  of  the  fee.  With'  the  privilege  or  p  ■ 
taxes  and  assessments:  but  the  right  to  build  on  the  land, 
without  which  village  or  city  lots  are  of  little  or  no  value, 
Lets  been  destroyed  by  a  lawful  window.  How  much  land 
can  thus  he  rendered  to  the  owner,  remains  yet  to 

ettlcd.  Now,  what  is  the  acquiescence  which  con 
eludes  the  owner?  No  one  has  trespassed  upon  his  land, 
or' done  him  a  legal  injury  of  any  kind.  He  1ms  submit- 
ted to  nothing  but  the  exercise  of  a  lawful  right  on  the 
part  of  his  neighbor.  How,  then,  has  he  forfeited  the 
ficial  interest  in' his  pro]  lias  neglected  to 

fucur  tin  building  a  wall  twenty  or  I 

high,  as  the  case  may  be  — not  for  hisowi  ;,  but  Jor 

the  sole    purpose   of  aunoyir. 
his  only   remedy.      A    wanton   aet  of  this  kind,  although 


416 SUPREME  COURT 

Baker,  Fry  &  Co.  v.  Ingersoll.  ' 

doue  in  one's  own  land,  is  calculated  to  render  a  man 
odious."  And  the  court  ruled  in  that  case,  that  the 
English  doctrine  was  not  applicable  to  our  country,  and 
refused  to  adopt  it.  To  the  same  effect  are  Napier  v.  Bul- 
winkle,  5  Rich.  Law,  322;  Cherry  v.  Stein,  11  Md.  22-3; 
Iugraham  v.  Hutchinson,  -2  Conn,  597.  See,  also,  Cris- 
well  v.  Clugh,  3  Watts,  330;  and  the  authorities  cited  in 
this  case  when  formerly  here — 35  Ala.  602. 

That  the  length  of  time  during  which  the  plaintiff  has 
enjoyed  his  windows,  is  sufficient  to  perfect  his  right,  if 
there  had  been  in  that  enjoyment  the  properties  necessary 
to  constitute  an  adverse  holding,  is  settled  in  this  State. 
Stein  v.  Burden,  24  Ala.  130;  Roundtree  v.  Brantley, 
34  Ala.  544;  Polly  v.  McCall,  June  Term,  1860s 

"We  fully  concur  in,  and  adopt  the  doctrine  declared  by 
the  supreme  court  of  New  York,  supra. 

Judgment  affirmed. 


BAKER,  FRY  &  CO.  vs.  INGERSOLL. 

[SCIKE  FACIAS  ON  JUDGMENT.] 

1.  Pamtt  to  sci.  fa. — On  the  death  of  the  nominal  plaintiff  in  a 
judgment,  a  scire  facias  to  revive  it  must  be  prosecuted  in  the  name 
of  his  personal  representative,  and  cannot  properly  be  issued  in 
the  name  of  the  beneficial  plaintiff  alone,  nor  in  the  name  of  the 
deceased  nominal  plain  tiff. 

Appeal  from  the  Circuit  Court  of  Russell. 
Tried  before  the  Hon.  Nat.  Cook. 

In  this  case,  Allen  Matthews,  suing  for  the  use  of 
Baker,  Fry  &  Co.,  recovered  a  judgment  against  Stephen 
M.  Ingersoll,  in  the  circuit  court  of  Russell,  on  the  14th 
October,  1839.     Executions  were  issued  on  this  judgment 


OF  ALABAMA.  417 


Baker,  Fry  &  Co.  v.  Ingersoll. 


on  the  29th  November,  1839,  and  on  the  15th  January, 
1841;  and  on  the  26th  February,  1857,  a  scire  facias  to 
revive  it  was  sued  out  in  the  name  of  said  Matthews. 
By  consent  of  parties,  the  scire  facias  was  allowed  to 
stand  in  lieu  of  a  declaration.  The  defendant  pleaded, 
among  other  things*,  that  Allen  Matthews,  the  nominal 
plaintiff,  was  dead  when  the  scire  facias  was  sued  out;  to 
which  plea  the  plaintiffs  demurred.  The  court  overruled 
the  demurrer,  and  charged  the  jury,  that,  if  said  Mat- 
thews was  dead  when  the  scire  facias  was  sued  out,  they 
must  find  for  the  defendant.  The  plaintiffs  excepted  to 
these  rulings  of  the  court,  and  they  now  assign  the  same 
as  error. 

D.  Clopton,  with  Chilton  &  Yancey,  for  appellants,  cited 
the  following  authorities:  2  Tidd's  Pr.  1095;  Bates 
v.  Terrell,  7  Ala.  "129;  Miller  v.  Shackleford,  18  Ala.  98; 
Stewart  v.  Cunningham,  22  Ala.  628;  Smith  v.  Harrison, 
33  Ala.  709. 

Geo.  D.  Hooper,  contra,  cited  J  elks  v.  Edwards,  6  Ala. 
143;  Tait  v.  Frow,  8  Ala.  543;  Gray  v.  Turner,  8  Ala. 
30;  Duncau  v.  Hargrove,  22  Ala.  160;  4  Com.  Digest, 
239;  1  Rolle's  Abr?900. 

R.  W.  WALKER,  J.— [July  11, 1861.]— The  scircfacias, 
following  in  this  respect  the  original  judgment,  was  sued, 
out  in  the  name  of  Allen  Matthews,  for  the  use  of  Baker, 
Fry  &  Co.  Matthews,  the  nominal  plaintiff,  died  after 
the  rendition  of  the  original  judgment,  and  before  the 
issuance  of  the  scire  facias ;  and  the  question  now  pre- 
sented is,  whether  this  fact  is  a  bar  to  the  proceeding,  or 
whether,  on  the  suggestion  of  the  death  of  the  nominal 
plaintiff,  the  scire  facias  could  proceed  in  the  name  of  the 
beneficiaries. 

The  Code  provides,  that  "when  suit  is  brought,  for  the 

»f  another,  the   death  of  the   nominal  plaintiff  docs 

not  abate  the  suit,  but  it   proceeds   in   the  name   of  the 

beneficiary." — Code,  §  2147.     This  statute  renders  an- 


418  SUPREME  COURT 


Baker,  Fry  &  Co.  v.  Ingersqll. 


necessary  the  revival  of  the  action,  where  the  nominal 
plaintiff  dies  during  its  pendency;  but,  where  the  person 
who  has  the  legal  interest  in  the  cause  of  action  dies, 
there  is  nothing  in  this  law  which  authorizes  the  subse- 
quent  institution  of  a  suit  in  the  name  of  such  person, 
for  the  use  of  the  party  having  the  ^beneficial  interest. 
Such  a  case  is  unaffected  by  statute  in  this  State,  and  the 
personal  representative  must,  as  at' common  Jaw,  be  the 
actor  of  record.  And  where  suit  is  brought  in  the  name 
of  one  person,  for  the  use  of  another,  the  defendant  may 
plead,  either  in  bar  or  abatement,  that  the  nominal  plain- 
tiff was  dead  at  the  commencement  of  the  suit. — Jelks  v. 
Edwards,  0  Ala/ 143;  Tait  v.  Frow,  8  Ala.  543. 

A.  scire  facias  on  a  judgment  is  sometimes,  for  some 
purposes,  regarded,  not  as  a  new  action,  but  as  a  mere 
continuation  of  the  original  suit.  Thvrs,  it  must  issue 
out  of  tin3,  court  in  which  the  judgment  was  rendered; 
.  matter  which  might  have  been  pleaded. in  defense  of  the 
original  actioti,  cannot  be  pleaded  in  defense  of  the  scire 
facias  ;  and  no  nctv  judgment  for  debt  or  damages  can  be 
rendered  on  the  scire  facias,-  but  the  old  one  is  simply 
called  into  action  by  a.  judgment  that  the  plain tiri:  have 
execution. — Murray  v.  Baker,  5  B.  Mon.  572;  Norton  v. 
Beaver,  5  Ohio,  178-;  In  other  respects,  however,  the  pro- 
ceeding by  scire  facias  must  be  regarded  as  a  new  suit. 
Thus,  the  defendant  may  plead  to  it  matters  subsequent 
to  the  rendition  of  the  judgment  sought  to  be  revived; 
and  as  respects  the  parties  to  the  proceeding,  it  is  in  the 
nature  of  an  action  upon  the  judgment,  and  governed  by 
the  rules  applicable  to  ordinary  suits  upon  judgments. 
Consequently,  a  scire  facias  can  only  be  maintained  in  the. 
name  of  him  who  has  the  legal  title  to  the  judgment; 
that  is,  in  the  name  of  the  original  plaintiff,  or,  after  his 
death,  of  his  personal  representative. — See  Duncan. v. 
Hargrove,  22  Ala.  160;  Hanson  v.  Jacks,  ib.  550;  Pick- 
ett v.  Pickett,  1  How.  Miss.  267;  McAfee  v.  Patterson, 
2  Sm.  &  M.  595;  Gonnigal  v.  Smith,  6  Johns.  10.G;  Crary 
v.  Turner,  ib.  53  (note  a);  Forbes  v.  Tiffany,  4  Inda.  204; 
Ensworth  v.  Davenport,  9  Conn.  390;  Smith  v.  Harrison, 


OF  ALABAMA.  419 


Cox,  Brainard  it  Co.  v.  Foscue. 


33  Ala.  709.  It  follows,  that  on  the  death  of  the  nominal 
plaintiff  in  a  judgment,  a  scire  facias  quare  executioncm  non, 
must,  like  an  original  suit  on  the  judgment,  be  conducted 
in  the  name  of  his  personal  representative,  and  cannot 
•properly  be  issued,  either  in  the  name  of  the  original  par- 
ties to  the  judgment,  or  of  the  benificiary  alone. 
Judgment  affirmed. 


COX,  BRAINARD  &  CO.  vs.  FOSCUE. 

•     [ACTION-   AGAINST  OWNERS  OF  STEAMBOAT  FOli  NEGLIGEXCEd 

1.  Li  teamhoatmen,  as  common  carriers,    in  matter   of   tran- 

shipment of  freight.  —  A  transhipment  of  freight  is  only  justifiable 
in  cases  of  necessity,  and,  if  made  in  I  ice  of  such  necessity 

as  oo  '        irrier  to  liability  for  the 

subsequent  loss  of  the  freight  on  the  vessel  to  which  it  is  trans- 
ferred ;  and  the  mere  grounding  ofa-steamboat  on  an  inland  river, 
from  which  she  could  relieve  hcr.-elf,  with  safety  and  convenience, 
by  temporarily  placing  a  part  of  her  cargo  on  the  bank,  and  after- 
vvarls  take  it  on  board  again  and  finish  her  voyage,  does  not  con- 
strfoite  such  legal  excuse. 

Appeal  from  the  City  Court  of  Mobile. 
Tried  before  the  Hon.  Alex.  McKinsi 

This  action  was  brought  by  P.  F.  Foscue,  against  the 
Hants,  as  common   carriers,  to   recover  damages   for 
the  1  ilea  of  cotton,  which  were  shipped  by  the 

plaint iil  on  board  the  defendants'  steamb 

.  IJIrick  at  Mobile,  and  which  were 

never  delivered.     The   case*   \v;'s  before  this  court  at  its 

January  when  the  judgment  of  the  city  court 

':.  and  the  cause  remanded. — Seethe  report  in 

On  tin  1  trial,  as  appears  from  the 

record,  the  d  ifeudants  pleaded  the  general   issue,  a: 


420 SUPREME  COURT 

Cox,  Brainard  &  Co.  v.  Foscue. 

special  plea  averring,  in  substance,  that  the  cotton  was 
lost  by  "the  dangers  of  the  river  and  of  fire,"  within  the 
meaning  of  the  exception  contained  in  the  bill  of  lading; 
and  issue  was  joined  on  each  of  these  pleas.  It  appeared 
from  the  evidence  adduced  on  the  trial,  that  the  plaintiff's 
cotton  was  shipped  on  board  of  the  defendants'  boat, 
Eliza  Battle,  at  Pace's  landing  on  the  Tombeckbe  river, 
on  the  20th  November,  1855;  that  the  bill  of  lading  con- 
tained the  usual  exception  as  to  "dangers  of  the  river 
audfire;"  that  the  Eliza  Battle,  while  on  her  voyage 
down  the  river,  ran  aground  on  Groom's  bar,  and,  in  order 
to  lighten  her,  a  part  of  her  cargo,  including  the  plain- 
tiffs cotton,  was  transferred  to  the  Jenny  Bealle,  another 
boat  belonging  to  the  defendants,  which  passed  while  the 
Eliza  Battle  was  on  the  bar;  that  the  Eliza  Battle,  after 
being  thus  lightened,  continued  her  voyage  down  the 
river,  without  taking  back  any  part  of  her  cargo  from 
the  Jenny  Bealle;  that  the  latter  boat  afterwards  ran 
aground,  and  was  lightened,  in  like  manner,  by  transfer- 
ring a  part  of  her  cargo  to  the  Sallie  Spann,  another  boat 
belonging  to  the  defendants;  and  that  the  Sallie  Spann, 
with  all  her  cargo,  including  the  plaintiff's  cotton,  was 
afterwards  destroyed  by  accidental  fire.  Each  one  of  the 
boats  was  shown  to  have  had  skillful  and  competeut 
officers  and  a  sufficient  crew,  and  not  to  have  been  over- 
loaded; and  no  question  of  negligence  arose  in  the  case. 
One  of  the  plaiutift's  witnesses,  who  was  a  passenger  on  the 
Eliza  Battle,  testified  as  follows:  "The  river  was  low, 
and  falling  slowly.  I  saw  no  danger  to  the  boat,  as  she 
lay  on  the  bar,  and  heard  nothing  said  by  her  officers  as 
to  any  danger,  except  danger  of  delay,  or. of  inability  to 
continue  her  voyage.  The  boat  was  so  near  the  bank  at 
one  end,  that  she  could  have  put  out  her  gangways,  aud 
rolled  off  her  cotton  on  the  bank.  I  do  not  know  what 
constitutes  a  necessity  to  tranship,  nor  do  I  know  wheth- 
er the  boat  could  have  gotten  off;  but  the  cotton  could 
have  been  landed  on  the  bank,  by  putting  out  planks 
from  the  boat." 

"The  court  charged  the  jury  as  follows:     'If  the  Eliza 


OF  ALABAMA.  421 


Cox,  Brainard  &  Co.  v.  Foscue. 


Battle  was  compelled  to  tranship'the  cotton,  by  or  through 
the  negligence  or  want  of  skill  of  those  who  had  the 
management  and  control  of  her,  the  defendants  are  liable. 
But,  if  there  was  no  negligence,  or  want  of  skill,  on  the 
part  of  those  who  had  the  management  and  control  of 
the  Battle,  then  you  will  ascertain,  whether  or  not  she  was 
in  such  a  condition  that,  in  order  to  avoid  an  itnpendingse-. 
rious  danger  or  loss  to  the  boat  and  cargo,  it  was  necessary 
to  tranship  the  cargo,  or  a  part  of  it,  and  there  was  no 
other  reasonable  way  of  lightening  her  in  tfce  power  of  the 
captain  with  his  crew,  by  which  said  lightening  could 
have  been  effected,  at  less  risk'  to  the  plaintiff  than  was 
occasioned  by  such  transhipment.  In  case  of  grounding, 
if  the  grounding  was  by  reason  of  any  negligence* of  the 
defendants,  they  would  be  responsible  for  all  the  conse- 
quences of  the  transhipment  and  loss,  if  accruing  by 
reason  of  the  transhipment.  If  the  grounding  was  not 
by  negligence,  then,  if  it  became  necessary  to  lighten  the 
•boat  in  order  to  get  her  ofK  their  first  duty  would  be  to 
land  the  cotton,  if  that  would  have  enabled  the  boat  to 
proceed,  and  it  was  practicable  to  do  so  with  safety,  and 
take  it  on  again  after  the  boat  was  freed  from  the  ground- 
ing, and  in  a  proper  condition  to  proceed  on  her  voyage. 
If  this  could  notbe  conveniently  done,  then  it  was  proper 
to  put  the  cotton  on  another  boat,  ill  order  to  lighten  the 
JBiittle,  if  the  captain,  acting  with  the  judgment  that  a 
wise  and  prudent  man  would  exercise  as  the  most  condu- 
cive to  the  benefit  of  all  concerned,  came  to  the  conclu- 
sion that  BUeh  transhipment  should  be  made.  If  yon  are 
satisfied  that  there  was  such  a  state  of  facts,  and 'the 
transhipment  was  proper,  the  defendants  are  entitled  to 
a  v  rdict;  if  it  was  not,  the  plaintiff  is  entitled  to  a  ver- 
dict."' 

'J  he  court  also  charged  the  jury,  at  the  request  of  the 
plaintiff,  '"  that  the  right  of  transhipment  at  the  plain- 
tiff's risk  did  n«t  exist,  unless  it  was  necessary  to  avoid 
an  impending  serious  damage  or  loss  to  the  boat  and 
car-. i.  and  there  was  no  other  reasonable  way  of  lighten- 
ing the  boat  in  the  power  of  the  captain   with  bis  crew, 


SUPREME  COURT 


Cox,  Brainard  &  Co.  v.  Foscue. 


by  which  such  lightening  could   have   been  effected,  at 
risk  to  .the  plaintiff  than  was   occasioned   to  him  by 
such  transhipment." 

The  defendants  excepted  to  each  of  these  charges,  and 
they  now  assign  them  as  error. 

Geo.  N.  Stewart,  and  E.  S.  Dargan,  for  appellants.-— 
The  court  below,  in*  its  instructions  to  the  jury,  sanc- 
tioned the  transhipment  only  as  a  last  resort — required 
the  captaiu  first  to  exhaust  every  other  possible  mode  of 
lightening  the  boat;  and  made  it  his  first  duty,  to  land, 
the  cotton  on  the  bank  and  take  it  back  again,  if  that 
could  be  done  at  less  risk  to  the  plaintiff  than  was  in- 
curred by  the  transhipment.  In  each  of  these  particulars, 
it 'is  insisted,  the  instructions  are  erroneous.  It  is  the 
first  duty  of  a  carrier,  to  forward  the  goods  entrusted  to 
him  to  their  place  of  destination,  if  his'  own  vessel  be- 
comes disabled.  The  master  of  the  vessel  is  the  agent 
and  representative,  not  of  the  plaintiff  o.r  defendant  alone, 
but  of  all  the  parties  interested  in  the  ship  and  cargo- 
owners,  shippers,  and  underwriters;  and  it  is  his  duty  to 
consult  the  interests  of  all'  equally.  If  he,  exercising  his 
best  judgment  and  professional  skill,  and  acting  for  the 
best  interests  of  all  parties  concerned;  determined  that 
the  accident  rendered  the  transhipment  necessary  or 
proper,  he  was  authorized  to  make  it,  and  the  defendants 
thereby  incurred  no  liability  for  the  subsequent  loss  of 
goods. —  Parsons'  Mar.  Law,  162-3, 'and  notes;  Abbott 
on  Shipping,  448,  453-4,  240,  236,  249,  note  1;  Flanders 
on  Shipping,  257-8,240,  254,171,173;  3  Kent's  Com. 
(5th  ed.)  210,  212,  224;  1  Story's  R.  342;  4  Johns.  Ch. 
218;  9  Mass.  551;  9  Ad.  &  El/332 ;  Parsons'  Mercantile 
Law,  348-9. 

Wm.  Boyles,  audR.  II.  &  J.  L.  Smith,  contra.— A  tran- 
shipment of  freight  is  only  justifiable  in  cases  of  neces- 
sity. The  mere  stranding  or  grounding  of  the  vessel  does, 
not  constitute  a  case  of  necessity,  if  she  can  be  got  oft 
and  repaired  at  an  expense  not  exceeding  one-halt  her 


OF  ALABAMA.  423 


Cox,  Brainard  &  Co,  v.  Fos>  m\ 


value. — Abbott  on  Shipping,. 451;  Bryant  v.  Com.  Ins. 
Co.,  6  Pick.  Ill;  3  Story,  465;  1"  liar'r,  111;  1  Arnould 
on  Ins.  181;  Flanders  on  Maritime  Law,  §§  135,  137; 
Am.  Law  Reg.  for  June,  1357,  p.  459;  8  Wa  .44; 

1  B.  Monroe,  339;  6  Ohio,  359;  8  Missouri,  99;  ■>  \d.  & 
El.  314. 

j  A.  J.  WALKER,  C.  J.— [July  1,1861.]— The  contract 
of  affreightment  obliges  the  carrier,  in  the  \e  of 

a  legal  excuse,  to  carry  the  freight  to  the  destined  port 
in  the  very  vessel  stipulated  in  the  bill  of  lading.  It  is 
aright  resulting  from  the  contract,  that  the  transporta- 
tion shall  !»e  in  the  chosen  vessel.  It  is  not  permissible 
to  speculate  as  to  the  reasonableness  of  the  choice.  The 
owner  of  the  freight  cannot  be  questioned  as  to  his 
reasons.  The  law  allows  to  him  the  benefit  of  the  max- 
im, "  Ic  jubeo,  sit  pro  ratione  votuntas," — Bazinv. 
Liverpool  &  Am.  Steamship  Co.,  Am.  Law  Register  for 
Juno.  1857,  p.  4o'.>.  (pinion  by  Judge  Crier;  Carnett  v. 
•Willan  &  Jones,  5  Barn.  &  .Aid.  53-G1;  Little  &  Tomp- 
kins v.  Sample,  8  Mo.  99.  A  transhipment  of  the  weight, 
without  a  legal  excuse,  however  competent  and  <i\fa  thc( 
il  into  which  the  transfer  is  made,  is  a  violation  of 
the  contract,  an  infringement  of  the  rights  of  til- 
er, and  subjects  the  carrier  to,  liability,  if  the  freight  be 
lost.  The  transhipment,  t:  e,  of  the  plaintiff's 
cotton,  of  itself  rendered  the  carrier  liable  foi 
auent  loss  of  the  cotton,  unless  the  act  of  tra  aent 
was  legally  proper  or  exeusable. 

The  first  charge  given  by  the  court  announced  tlie  pro- 
ion,  that  lie'  transhipment  was  not  rendered  proper 
b}-  the  grounding  of  the  boat,  if,  by  placing  the  cotton  on 
board  upon   tie'    bank,  the    boat  would   huvi  :i   freed 

from  the  grounding,  and  could  afterwards  lie  m  on 

>n,  and  pi    '  \     i  foyagej  and  ;  inga 

could  have  been  done  with  safety  and  convenience.     The 
pr,e<i-<  question  to  which  this  charge  ^ives  rise  is.  wliether 
a  grounded  steamboat,  upon  one  of  our  interior  rivet 
justified   in  transhipping  a  part  of -her  car*gb,  when  she 


A 


424  SUPREME  COURT 


Cox,  Brainard  &  Co.  v.  Fosoue. 


could  with  safety  and  convenience  relieve  herself,  by 
placing  it  upon  the  bank,  and  then  take  it  on  and'prose-.' 
cute  her  voyage  to  the  port  of  destination.  The  rule  of 
maritime  law  is  not,  that  the  master'of  a  vessel  may  at 
his  election,  or  even  when  he  deems  it  most  politic,  tran- 
ship. The  privilege  of  transhipment  is  one  of  necessity. 
■  ■  Story  says,  the  master  "is  not  at  liberty  to  trans- 
port the  goods  in  an\  other  vessel  in  the  course  of  the 
voyage,  except  from  mere  -necessity,  when  his  own  ship  be- 
comes incapable,  by  inevitable  casualty,  from  performing 
it."— Story  on  Bailments,  564,  §  562.  Chancellor  Kent 
states  the  same  principle  in  the  following  language:  "In 
cases  o/  necessity,  as  where  the  ship  is  wrecked,  or  oth- 
erwise disabled  in  the  course  of  the  voyage,  and  cannot 
be  repaired,  or  cannot,  under  the  circumstance*,  be  re- 
pair ed  without  too  great  delay  and  expense,  the  master 
may  procure  any  other  competent  vessel  to  carry  on  the 
carg  >  and  save  his  freight." — Kent's  Com.  m.  p.  210. 
And  Angell,  in  his  work  on  Carriers,  in  reference  to  the 
same  subject,  says,  that  if  by  reason  of  stranding,  or 
sorue  other  unexpected  cause,  it  becomes  impossible  to  con-* 
vey  the.  cargo  safdy  to  its  destination  in  his  own  vessel,  the 
master  is  to  do  what  a  prudent  man  would  think  most 
for  the  ^enefit  of  all  concerned;  and  trail  Inpatient  to  the 
place  of  destination  is  the  first  object,  because  that  is  the 
furtherance  ot  the  original  object. — Angell  on  the  Law 
of  Carriers,  188,  §  187.  See,  also,  Smith's  Mercantile 
Law,  292;  1  Parsons' Mar.  Law,  163,  161,  n.  2;  Abbott 
on  Shipping,  m.  p.  365;  Searle  v.  Scovel,  4  Johns.  Ch. 
R.  222;  Shipton  v.  Thornton,  9  Ad.  &  El.  333;  Crawford 
v.  Williams,  1  Sneed,  212;  1  Arnould  on  Ins.  181,  top; 
.Jordan  v.  Warren  Ins.  Co.,  1  Story,  354;  Parsons'  Mer. 
Law,  348-9. 

It  may  be  that  the  necessity,  which  would  justify  a 
transhipment,  is  not  required  to  be  shown  with  absolute 
certainty  to  have  existed.  That  a  moral  necessity  would 
be  sufficient  to  justify  the  transhipment,  seems  to  be  con- 
ceded by  the  authorities.'  Such  a  case  of  moral  neces- 
sity would  exist,  where  the  circumstances  were  such,  that 


OF  ALABAMA.  425 


Cox,  Brainard  &  Co.  v.  Foscue. 


a  master  of  reasonable  prudence  and  discretion,  acting 
upon  the  pressure  of  the  occasion,  would  have  made  the 
transhipment,  from  a  firm  opinion   that,  unless  the  tran- 
shipment was  made,   the   vessel  could   not  be  delivered 
from  the  peril  at  all,  or  not  without,  the  hazard  of  an  ex- 
pense utterly   disproportionate  to  her  real  value. — Brig 
Sarah  Ann,  2  Sumner,  207;  Gordon  v.  Mass.  .Ma.  &  Fire 
Ins.  Co.,  2  Pick.  240;  Ship  Fortitude,  2  Sum.  248;  Flan- 
ders on  Maritime  Law,  104,  n.  2;  1  Parsons  on  Maritime 
Law,  GO;  Parsons'  Mer.  Law,  37t>,  n.  8.     A  case  of  such 
moral  necessity  is  put  by  Lord  Tenterden,  as  follows:  "If 
on  the  high  se»s  the  ship  be  in  imminent  danger  of  sink- 
ing, and  another  ship,  apparently  of  sufficient  ability,  be 
parsing  by,  the  master  may  remove  the  enrgo  into  such 
ship;  and   although  his  own   ship  happen  to  outlive  the 
storm,  and  the  other  perish  with  the  cargo,  he  will  not 
be  answerable  for  the  loss." — Abbott  on  Shipping,  m.  p. 
365.     But  no  such  case  of  moral  necessity  is  presented  in 
the  facts  upon  which  the  court  below,  iu  the  charge  which 
we  are  considering,  instructed   the  jury,   that  the  tran- 
shipment of  the  plaintiff's  cotton  was  not  justified. 

In  the  case  of  Bryant  v..  Com.  Ins.  Co.,  (6  Pick.  141,) 
the  court  sustain  the  view  which  we  take  of  the  master's 
duty  iu  this  case,  iu  the  following  language:     "The  law 
authorizes  the   master,  in  case  of  shipwreck,  stranding, 
or  other  disasters,  which  may  happen  without  his  fault, 
to  act  for  all  parties  interested   iu  their  absence.     If  the 
ship  should  be  stranded,  it    would  be  his  duty,  in  behalf 
of  the  owner  of  the  ship,   to  get  her  off  and  prosecute 
the  voyage,  if  it  could  bo  done  at  an  expense  not  exceed- 
ing half  her  value.     So,  if  that  could  not  be  done,  he  has 
authority  to  procure  another  ship  to  carry  the  cargo  to 
the  port  of  destination.      If  the  cargo  were  damaged  by 
the   stranding,   not    exceeding    one-half  of   the  invoice 
value,  it  would   he  the  duty  of  the  master,  as  represent- 
ing the  owner  of  it,  to  cause  it  to  be  reladen  on  board  of 
the  ship,  if  that  were  in  a  condition    to  transport   it,  or, 
if  not,  on  board  any  other  ship  which   he   could  procure 
Upon  reasonable  terms  on  account  of  the  ship-owner;  to 
the  end  that  the  ship-owner  may  earn  his  freight,  and  the 
28 


16 SUPREME  COURT 

Cox,  Bi'&inard  &  Co,  v.  Fo-=oue. 

merchant  may  have  his  goods  at  the  port  of  destination. 
The  master,  in  short,  is,  in  sneh  cases,  to  act  reasonably 
and  honestly,  with- a  view  to  save  the  property  and 
form  the  voyage."  The  mere  stranding,  ot  itself.  • 
not  necessarily  produce  a  necessity  for  transhipment. 
Notwithstanding  the  stranding,  it  is  the  master's  duty 
to  get  the  vessel  off",  and  prosecute  the  voyage,  if  lie  can 
do  so;  and  no  consideration  of  mere  convenience  to  him 
would  justify  a  transhipment. 

We  do  not  think  the  charge  given  at  the  instance  of 
the  appellee  is  obnoxious  to  the  objection  made  especially 
to  it.  The  objection  is,  that  it  makes  the  transhipment 
improper,  unless  there  was  no  other  reasonable  way  of 
lightening  the'boat  in  the  power  of  the  captain,  at  lesfl 
risk  to  the  plaintiff  than  was  occasioned  by  the  tranship- 
ment; and  that  the  jury  were  thus  made  to  consider  the 
interest  of  the  plaintiff  alone,  and  not  of  the  boat-owner 
and  all  others  concerned,  in  determining  whether  trie 
transhipment  was  proper.  We  do  not  think  the  charge 
is  obnoxious  to  the  objection.  A  way  of  lightening  the 
boat,  which  would  protect  the  plaintiff  at  the  expense  of 
all  others  concerned,  would  be  unreasonable;  and  the  use 
of  the  word  reasonable  in  the  charge  shows,  that  the  court 
did  not  intend  to  make  the  impropriety  of  the  tranship- 
ment depend  upon  the  fact,  that  there  was  another  way  of 
lightening  the  boat,  which  would  produce  less  risk  to  the 
plaint ilt",  but  which  would  involve  a  disregard  of  the  in- 
terest of  all  others  concerned.  If  the  charge  is  confused, 
and  tended  to  mislead  the  jury,  the  appellants  ought  to 
have  protected  themselves  by  asking  an  explanation  at 
the  time.  What  we  have  already  said  in  passing  upon 
the  first  charge,  will  meet  the  other  objections  made  to* 
the  second^ 

Judgment  affirmed. 

Stone,  J.,  does  not  assent  to  the  correctness   of  the 
criticism  of  the  last  charge  given. 


OF  ALABAMA.  427 


Patterson  v.  Flanagan-. 


PATTERSON"  vs.  FLANAGAN. 

[TROVKR    FOK    CeMTKSliiN    (_•'■     SLAVE.] 

1.  }!'■/  l.i-i  Ct  r  ry  separate  estate — Under  the  I 
(|  1983,)   the  husband  has  no  right  or  power  to  mortgage,   ' 

own  individual  debt,  a  .slave  belonging  to  ths  wife's  statutory  sep- 
arate estate. 

2.  Declarations  explanatory  oj  .  air!  against  interest. — I>< 
tions,   made  by  a  i>erson  who  has  the  possession  of  a  slave,  t<>  the 
effect  that  he  holds  under  a  will,  and  olafms  only  a  life 

the   slave,  are   competent  evidence  on   the   principle  of  res 

and  as  admissions  against  interest,  without  the  production  ol'  the 

will. 

3.  Relevancy  of  evidence,   in  trovei',  showing  time  of  shift's  death, — In 

iver  by  tin'  wife,  after  the  death  of  the  husband,  for  the  conver- 
sion of  a  slave  belonging  to  her  statutory  separate  estate,  which" 
went  into  the  defendari  n  under  a  mortgage  exec 

by  the  husband  without  authority  of  law,  and  was  accidentally 
drowned  while  thus  in  his  possession,  it  is  wholly  immaterial 
whether  the  death  of  the  slave  occurred  before  or  after  the  death 
of  the  husband;  consequently,  the  exclusion  of  evidence  bearing 
on  that  question  is  not  a  matter  available  en  error. 

Appeal  from  the  Circuit  Court  of  Wilcox. 
Tried  before  the  Hon.  "N"at.  Co 

This  action  was   br  by  Mrs.  Eliza  E.  FInnr: 

against   I).  A.  W.  Patterson,  abd  was  commenced  on  the 
i!l-i  September,  Iv-">s.     Tin'  complaint,  as  amended,  con- 
tained two  counts;  the  first  beingin  the  osnal  fo'rta  i 
count   in    trover   for  tlie   conversion   of  a  slave,    nai 
Ellen,   the   property   of   the  plaintiff;    ami    the   sec 
claiming  fifteen  nun  ars  damages  for  the  defend* 

'ant's  neg  and  want  of  proper  care  and  at) 

towards  the  slave,  while  in  hi-  ion  anderaconti 

of  hiring.     No  pleas  appear  in  tl  ].     The  slav 

controversy,  ai  appeared   from  the  evidence  adduced  on 
the  trial,  had    belonged  to  the  plaintiff*  paternal    grand- 


428      •  PREME  COURT 


Patterson  v.  Flanagan. 


father,  who  bequeathed  her  to  the  plaintiff's  father  for 
life,  with  remainder  to  the  plaintiff.  The  plaintiff  v. 
married,  in  October.  1863,  to  James  M.  Flanagan,  who 
died  on  the  11th  May,  1857 :  and  she  owned  and  possessed 
said  slave  at  the  time  of  her  marriage.  The  defendant 
obtained  the  possession  of  the  slave,  in  the  early  part  of 
the  year  1857,  under  a  mortgage  from  said  Flanagan,  to 
secure  the  re-payment  of  a  sum  of  money  lent  by  him  to 
said  Flanagan  ;  and'she  was  accidentally  drowned,  while 
thus  in  hi9  possession,  in  attempting  to  walk  across  a 
foot-log  over  a  creek,  on  returning  with  other  negroes 
from  the  field  in  which  they  worked.  The  exact  time  of 
the  slave's  death — whether  it  occurred  before  or  after  the 
11th  May,  1857,  when  said  Flanagan  died — was  not  shown. 
The  defendant's  overseer,  the  only  witness  who  testified 
to  the  circumstances  attending  her  death,  could  not  state 
the  precise  time  at  which  it  occurred  ;  and  the  court  ex- 
cluded all  the  evidence  offered  by  the  defendant,  for  the 
purpose  of  showing  that  it  occurred  before  the  11th  May. 
This  evidence  consisted  of  the  report  of  the  slave's  death 
in  the  town  of  Camden,  which  was  about  one  mile  distant 
from  the  defendant's  plantation  ;  the  statement  of  a  wit- 
ness, who  lived  in  Camden,  that  he  had  heard  of  the 
slave's  death  before  Flanagan  died  ;  and  a  copy  of  a  news- 
paper published  in  Camden,  dated  the  9th  May,  which 
contained  an  account  of  the  slave's  death  on  the  6th  May. 
The  defendant  reserved  several  exceptions  to  the  exclu- 
sion oi  this  evidence. 

On  cross-examination  of  one  Harwood,  a  witness  for 
plaintiff,  "defendant,  asked  said  witness,  whether  plain- 
tiff's father  had  the  possession  of  said  slave  in  his  life- 
time, and  claimed  her  as  his  own  property;  to  which  the 
witness  answered  affirmatively,  and  stated,  in  reply  to 
other  questions,  that  said  slave  was  delivered  to  plaintiff 
by  her  father's  administrator,  about  three  months  after 
his  death,  and  that  he  died  intestate.  Plaintiff  asked 
said  witness,  on  the  rebutting  examination,  how  plain- 
tiff's father  claimed  to  own  said  slave;  and  the  witness 
answered,  that  he  claimed  to  own  her  for  his  life  only. 


OF  ALABAMA.  420 


Patterson  v.  Flanagan. 


The  defendant  then  asked  the  witness,  whether  the  life- 
estate   was  so  claimed  by  plaintiff's  father  under  a  d 
orwill;  and  he  answered,  that  it  was  under  a  will.  There- 
upon, the  defendant  objected  to  the  proof  made  by  the 
witness,   (that  lie  only  claimed  a  life-estate  in  the  si;. 
unless  the  will  was  produced.      The  court   overruled   tie 
objection,  and  permitted  the  evidence  to  remain   bef 
the  jury;   and  the  defendant  excepted." 

The  plaintiff  proved,  by  several  witnesses,  declarations 
made,  at  different  times,  by  the  defendant  and  the  plain- 
tiff's deceased  husband,  as  to  the  terms  of  the  contract 
under  which  the  defendant  obtained  the  possession  of  the 
slave;  the  substance  of  these  declarations  being,  that 
Flanagan  mortgaged  the  slave  to  the  defendant,  to  secure. 
the  re-paymcut  of  a  sum  of  money  lent  to  him  by  the 
defendant.  She  also  read  in  evidence  a  portion  of  the 
defendant's  answers  to  interrogatories  filed  to  him  under 
the  statute,  in  another  suit  between  them,  (in  which  she 
sued  for  the  conversion  of  another  slave,  named  frank.) 
in  the  following  words:  '-The  boy  Frank  was  put  in  my 
possession  by  James  M.  Flanagan,  in  1857,  for  the  pur- 
pose of  securing  the  payment  of  $  7.50  paid  by  rue  for 
him;  and  the  understanding  n  us  was,  tlur  if  the 

said.mouey  was  not   paid  to  me  by  some  time  in  Decem- 
ber, 1857,  (the   time   not  now  reiucmbered,)  I  waa.to  sell 
Frank,  and  another  negro  put  in  my  possession  by 
Flanagan,  and  pay  myself  the  amount." 

wt  Alter  having  charged  the  jury,  without  objection,  as 
to   the  facts   :  ry  to  make  ive  the  separate 

the  plaintiff  under  the  Code  of  Alabama,  the 
court  further  charged  the  jury-as  follows:  That  if  they 
found   from  the  mder  the  previous  eh; 

the  com'.  te  of  the 

plaintiff,    held  by  iter  under  f  Alabama,  then 

us  baud  had  no  right  to  mor  bout 

lc  r  ku  >\vled  to      cure  a  debt  of  his  own  ; 

and   thai  if  i. 

ant,  and  the  defendaut  i  on  oi   her  under  the 

mortgage,  his  Ao\  be  unlawful  ;. 


430  SUPREME  COURT 


Patterson  v.  Flanagan. 


the  plaintiff;  and  that  if  the  slave  was  drowned  while  so 
held  by  the  -defendant,  the  defendant  would  be  liable  to 
the  plaintiff  for  her  value,  and  the  mortgage  of  the  hus- 
band, if  given  as'aforesaid,  would  not  protect  him." 

The  defendant  excepted  to  this  charge,  and  requested 
the  court  to  give  four  charges  in  writing;  the  first  and 
third  of  which  the  court  gave,  but  refused  the  others  ; 
and  the  defendant  excepted  to  their  refusal.  The  charges 
so  refused  were  in  the  following  words: 

"2.  If  the  jury  find,  from  the  evidence,  that  the  plain- 
tiff was  the  wife  of  James  M.  Flanagan  in  the  earl}-  part 
of  the  year  1857,  and  had  a  separate  estate  in  the  slave 
Ellen,  held  by  her  under  the  provisions  of  the  Code  of 
Alabama,  as  defined  in  the  charge  given  by  the  court; 
and  that  said  Flanagan  placed  said  slaves  in  the  posses- 
sion of  the  defendant,  under  a  contract  that  he  was  to 
have  the  use  of  the  slaves  for  the  interest  on  the  money 
loaned  by  him  to. said  Flanagan,  until  the  then  next  De- 
cember, and  then  was  to  have  authority  to  sell  them,  if 
the  money  was  not  paid, — then  the  defendant's  possession 
of  the  slave  would  be  lawful  up  to  December,  1857." 

"4.  If  the  jury  believe,  from  the  evidence,  that  the 
slave  Ellen  went  into  the  defendant's  possession,  under  a 
contract  that  she  was  to  remain  in  his  possession,  as  a 
security  for  money  which  James  M.  Flanagan  owed  him, 
until  December,,  1857,  and  then  be  sold  by  the  defendant 
to  pay  the  debt,  unless  sooner  paid,  and  the  hire  of  the 
slave  in  the  meantime  to  discharge  the  interest  on  the 
debt;  and  that  the  said  slave  died,  without  the  fault  of 
the  defendant  or  his  overseer,  before  the  death  of  said 
James  M.  Flanagan,  and  before  December,  L857,  then 
the}'  should  find  for  the  defendant." 

The  ruiings  of  the  court  on  the  evidence,  the  charge 
given  to  the  jury,  and  the  refusal  of  the  charges  asked, 
are  now  assigned  as  error. 

Morgan  &  1>yri>,  for  appellant — The  rents,  income,  and 
•profits,-  of  the  wife's   separate  estate  under  the  Code,  be- 
long to  the  husband,  who  alone  has  the  right  to  sue  for 


OF  ALABAMA.  431 


Patterson  v.  Flanagan. 


and  recover  them. —  Whitman  v.  Abernathy,  83  Ala.  154; 
Sessions  v.  Sessions,  33  Ala.  522;  Pickens  v.  Oliver, 
29  Ala.  532.  lie  is  entitled  to  receive  and  receipt  for 
any  property  belonging  to  his  wife's  separate  estate;  has 
the  right  to  invest  the  proceeds  arising  from  a  sale  of  it, 
or  to  use  them  for  the  benefit  of  the  wife;  the  right,  also, 
"to  manage  and  control"  her  property  at  his  discretion, 
subject  only  to  the  revisory  power  of  the  chancellor;  and 
has  a  contingent  right  of  survivorship,  to  the  extent  of 
one-half  of  the  personalty,  which  becomes  absolute  on 
the  death  of  the  wife  intestate.  With  all  these  rights, 
interests,  powers  and  duties,  devolved  upon  him  by 
statute,  it  would  be  a  strange  construction,  which  would 
confine  his  "management  and  control"  of  the  property 
to  the  passive  receipt  of  the  rents  and  profits,  without 
power  to  hire  or  pledge  the  property,  and  thereby  make 
it  produce  income  or  profits.  lie  alone  can  determine 
what  is  the  most  judicious  mode  in  which  to  employ  the 
property:  and  the  wife  can  only  avoid  his  acts  through 
the  interposition  of  the  chancellor,  when  her  title  to  the 
property  itself  is  thereby  endangered. 

P.  W.  Baine,  contra. — The  principle  on  which  the  case 
of  Boaz  v.  Boaz,  (36  Ala.  334,)  was  decided,  is  equally 
decisive  of  this  case.  To  give  the  husband  power  to 
mortgage  or  pledge  the  wife's  separate  property,  without 
her  assent,  for  his  own  individual  debt,  would  enable  him 
to  defeat  the  object  and  purpose  of  the  statute,  as  declared 
in  that  ease. 

STONE,  J.— [July  11,  1S01.]_ The  controlling  point 
in  this  record  arises  on  the  construction  of  section  1983 
of  the  Code.  That  section  reads  as  follows:  "  Property 
thus  belonging  to  the  wife,  [her  statutory  separate  et  I 

in  the  husband  as  her  trustee,  who  has  the  right  to 
manage  and  control  ie,  and  is  not  required  to  ac- 

count with  the  wife,  her  heirs,  or  legal  representatives, 
for  the^rents,  income,  or  profits  thereof;  but  such  rents, 
income  and  profits,  are  not  subject  to  the  payment  of  the 


4:\2 SUPREME  COURT 

Patterson  v.  Flanagan. 


debts  of  the  husband."  It  will  be  seen  that  this  section 
of  the  Code  vests  the  legal  title  of  the  wife's  separate 
estate  in  her  husband,  gives  him  the  right  to  manage  and 
control  the  same,  and  relieves  him  from  all  accountability 
for  its  income  and  profits  to  the  wife,  her  heirs,  or  legal 
representatives.  The  provisions  of  the  statute,  conferring 
on  the  husband  the  right  of  control,  and  exempting  him 
from  liability  to  account,  go  no  further  than  this. 

Under  the  act  of  1850,  which  substantially  conforms  to 
the  section  of  the  Code  above  copied,  this  court,  in  the 
case  of  Weems  v.  Bryan,  (21  Ala.  308,)  considering  the 
rights  of  a  surviving  husbaud  in  the  statutory  separate 
estate  of  his  deceased  wife,  said  :  "Under  this  provision, 
there  can  be  no  doubt  but  that  the  husband  becomes 
tenant  for  the  life  of  the  wife,  (per  autre  vie,)  of  the  rents 
and  prolits  of  the  wife's  estate.  The  right  'to  have  and 
possess,  control  and  manage,'  her  property  during  the 
coverture,  without  liability  to  account,  makes,  him  so. 
Like  every  other  tenant  for  Ufa,  he  is  entitled  to  emble- 
ments," &c. 

In  the  case  of  Bennett  v.  Bennett,  (34  Ala.  56,)  we 
withheld  express  approbation  of  the  opinion  in  Weems  v. 
Bryan,  (supra,)  but  adhered  to  it  as  a  rule  of  property. 

So,  in  Pickens  v.  Oliver,  (29  Ala.  532,)  we  followed  out 
the  principle  announced  in  Weems  v.  Bryan;  and, 
although  the  question  was  not  directly  presented,  we  said 
that,  in  the  rents,  income  and  profits,  of  the  wife's  statu- 
tory separate  estate,  the  husband,  during  the  continuance 
of  the  trust,  is  entitled  to  the  entire  interest,  and  the  wife 
to  no  part  of  it.  The  same  principle  had  been  substan- 
tially affirmed  in  the  older  decision  at  the  same  term  of 
Andrews  v.  lluckabee,  30  Ala.  143.  And  in  Whitman 
v.  Abernathy,  (33  Ala.  160,)  we  followed  this  principle, 
and  ruled,  that  the  wife  could  not  recover  from  the  hus- 
band's vendee  the  hires  of  slaves  belonging  to  herseparate 
estate,  which  hires  accrued  during  the  continuance  of  the 
trusteeship.  See,  also,  Rogers  v.  Boyd,  33  Ala.  175; 
Smyth  v.   Oliver,  31  Ala.  39;  Durden   v.   Mc Williams, 


0F_  A L  A 1  >  A  A !  A. 433 

Patterson  v.  'Flanagan. 


ib.  438;  Cowles  v.  Morgan,  34  Ala.  535;  Alexander  v 
Saulsbury,  January  term,  1SC1. 

It  will  be  observed  that,  in  most  of  these  cases,  the 
Sight  of  the  husband  to  the  rents,  income  and  profits,  is 
predicated  on  the  assumed  and  unqualified  ground,  that 
he  was  not  liable  to  account  therefor.  Such  was  the  state- 
ment of  the  principle  in  Weems  v.  Bryan,  and  the  later 
cases  followed  its  lead.  The  language  of  the  Cod1 
that  the  husband  "is  not  required  to  account  with  the 
wife,   her  heirs,  or  legal  r>  There  may  be  a 

distinction  between  a  general* exemption  from  liability  to 
account,  and  a  qualified  exemption  from  liability  to  ac- 
count with  the  wife,  her  heirs,  and  legal  representatives. 
Whether  a  husband,  holding  in  his  hands  the  income 
and  profits  of  the  wife's  separate  estate,  can  be  made  to 
account  for  such  income  and  profits  to  creditors  of  the 
wife,  is  a  question  which  has  not  been  considered  in  this 
court,  and  we  do  not  now  propose  to  consider  it.  Nor 
will  we  inquire  whether  any  peculiar  significance  attaches 
to  the  form  of  the  expression,  "is  not  required  to  account 
with  the  wife,  her  heirs,  or  legal  representatives."  These 
questions  will  be  disposed  of  when  they  ark 

In  the  later  case  of  Boaz  v.  Boaz,  (36  Ala.  334,)  we 
think  we  furnished  a  much  more  satisfactory  solution  of 
the  question  under  discission,  than  is  contained  in  the 
general  language  of  the  opinion  in  Weems  v.  Bryan,  fol- 
lowed, as  that  language  was  without  question,  in  the 
later  eases.  We  there  said,  "The  legislature,  in  making 
the  exemption  from  liability  for  the  husband's  di 
tainly  did  not  look  alone  to  his  benefit.  It  would  be  a 
strange'  anomaly  in  legislation,  if  the  husband  has 
clothed  with  a  right  to  the  entire  income  of  the  wi 
property,  exempt  from  liability  to  his  debts,  for  no  pur- 
I  the  bestowment  of  a  peculiar  boon  upon 
him.  lint  furthermore,  the  peculiar  language  of  the 
statute  is  indicative  of  an  ulterior  purpose.  It  first  de- 
clares, that  the  property  is  the  wile's  separate  estate.  It 
then  vests  it  in  the  husband  as  ■  .  and  proceeds  to 

declare,  not  that  the  income  belongs  to  the  husband,  but 


434  SUPREME  COURT 

Patterson  v.  Flanagan. 


that  he  shall  not  be  required  to  account  for  it.  The  hus- 
band, therefore,  holds  the  property  as  trustee,  and  is 
entitled  to  the  income,  merely  because  he  is  not  required 
to  account  for  it  as  trustee.  It  is  a  fair  inference  from 
these  provisions,  that  the  husband  is  not  vested  with  a 
title  in  his  own  right,  for  any  space  of  time,  to  the  wife's 
separate  estate ;  that  the  law  has  permitted  him  to  receive 
the  income,  with  the  purpose  that  he  might,  as  the  head 
of  the  family,  have  the  means  of  maintaining  that  family; 
and  has  made  it  free  from  liability  to  debts,  in  order  that 
his  misfortunes  and  thriftlessness  should  not  prevent  the 
accomplishment  of  the  purpose." 

In  promotion  of  this  line  of  argument,  we  may  well 
inquire,  if  the  legislature  intended  to  confer  on  the  hus- 
band the  unqualified  property  in  the  income  and  profits 
during  the  joint  lives  of  .himself  and  wife,  why  did  they 
not  express  that  intention  in  plain  and  unambiguous  lan- 
guage ?  Why,  when  simple  words  would  so  much  better 
subserve  thoir  purpose,  employ  the  circumlocution,  that 
the  husband,  as  trustee,  should  have  the  right  to  manage 
and  control  the  property,  without  liability  to  account 
with  the  wife,  her  heirs,  and  legal  representatives,  fol1  the 
rents,  income,  and  profits  ?  If  the  intention  was  to  make 
an  absolute  gift,  why  restrict  the  language  which  ex- 
empted him  from  liability  to  account?  These  questions 
we  ask,  without  intending  to  answer  them. 

It  is  not  our  intention  to  weaken  or  overturn  any  de- 
cision heretofore  made,  bearing  on  section  1983  of  the 
Code.  Those  decisions  have  doubtless  been  acted  on» 
and  have  become  rules  of  property.  But  we  are  not 
inclined  to  enlarge  the  husband's  interest  in  the  wife's 
separate  estate. 

Following  out  the  principles  declared  in  the  case  of 
Boaz  v.  Boaz,  (supra,)  it  is  manifest  that  a  mortgage  or 
pledge  of  the  wife's  separate  property,  by  the  individual 
contract  of  the  husband,  and  for  his  individual  debts,  is 
not  within  the  pale  of  the  authority  which  the  woman's 
law  confers  on  the  husband  and  trustee.  The  intention 
and  policy  of  the  law,  as  was  shown  by  the  result  of  the 


OF  ALABAMA.  435 


Patterson  v.  Flanagari. 


case  of  Boaz  v.  Boaz,  are,  that  the  wife  shall  receive  a 
support  from  the  labor  and  income  of  the  separate  estate. 
Hence,  Mr.  Boaz,  by  withdrawing  his  protection  and 
supervision  from  the  home  of  his  family,  was  declared  to 
have  forfeited  his  right  to  continue  in  the  exercise  of  the 
trust;  and,  for  that  cause  alone,  he  was  removed. 

So,  in  this  case,  Mr.  Flanagan,  by  mortgaging  the 
slave,  for  his  own  debt,  has  assumed  an  ownership  and 
control  of  the  property,  not  compatible  with  the  purposes 
of  the  trust.  This  can  not,  with  any  propriety,  be  classed 
as  an  act  of  management  or  control  of  the  property,  with 
a  view  to  the  maintenance  of  the  family.  It  is,  so  far  as 
we  can  discover,  a  placing  of  the  property  beyond  the 
reach  of  the  family;  not  as  a  means  of  securing  to  the 
wife  the  enjoyment  of  her  property,  but  as  a  means  of 
raising  money  for  the  benefit  of  the  husband. 

If  we  were  to  hold,  that  the  statute  confers  on  the  hus- 
band the  right  to  so  dispose  of  the  separate  estate  of  the 
wife,  it  would  follow,  that  the  wife  oouldnot  complain  of 
this  rightful  exercise  of  authority;  and  would  not  such 
principle  arm  the  husband  with  power  to  defeat  the  very 
object  of  the  statute,  as  declared  by  itself,  and  by  this 
court  in  the  cases  of  Smyth  v.  Oliver,  and  Boaz  v.  Boaz? 
We  will  not  further  elaborate  this  view. 

That  the  husband  may  hire  or  lease  out  the  separate 
property  of  the  wife,  as  a  general  rule,  we  will  not  deny. 
Such  hiring  or  leasing  may  be  one,  and,  in  the  circum- 
stances, the  most  advantageous  mode  of  maintaining  the 
family  from  the  income  of  the  separate  estate.  This 
power  might  be  abused;  and  for  the  correction  of  that 
abuse,  the  interference  of  the  chancellor  may  be  invoked, 
— with  what  success  or  show  of  right,  we  will  not  now 
anticipate. 

It  results  from  what  we  have  said,  that  the  circuit  court 
did  not  err  in  giving  the  first  affirmative  charge,  and  in 
refusing  the  second  and.  fourth  charg  d.     The  sec- 

ond affirmative  charge  waa  not  excepted  to,  and  we  i 
not  consider  it. 

[2.]  The  court  did  not  err  in  admitting  in  evidence  the 


436 SUPREME  CPU R T 

Alexander  v.  Saulsburv. 


declarations  of  Mrs.  Flanagan's  father,  made  while  he 
was  in  possession  of  the  slaves,  and  explanatory  of  his 
possession;  also,  in  disparagement  of  his  title.  That  he 
claimed  to  hold  them  under  a  will,  or  supposed  will,  can 
not  vary  their  legality  as  res-gestce  declarations. — Shep. 
Dig.  591,  etscq.:  Thomas  v.  Deg raffenreid,  17  Ala.  602. 

[3.]  The  testimony  offered,  tending  to  show  that  the 
slave  Ellen  died  anterior  to  the  death  of  Mr.  Flanagan, 
was  wholly  immaterial,  and  was  rightly  excluded  on  that 
ground,  if  no  other. 

Judgment  affirmed. 


ALEX  ODER  vs.  SAULSBUKY. 

[•ACTION  ON"  OTKN  ACCOUNT  FOR  GOODS  SOLD  AND  DELIVERED.] 

1.  Validity  of  sale,  by  wife  alone,  of  statutory  separate  estate ;  wh 
actianlies  to  recover  agreed  price.— A  sale  by  the  wife  alone,  without 
the  concurrence  of  her  husband,  of  property  belonging  to  her 
statutory  separate  estate,  is  absolutely  void,  and  passes  nothing  to 
the  pure'..:  i  ,■ ;  and  the  wife  cannot  maintain  an  action  at  law,  in. 
her  own  name,  to  recover  the  value  or  agreed  price  of  the  prop- 
erty. 

Appeal  from  the  Circuit  Court  of  Barbour. 
Tried  before  the  lion.  Jxo.  Gill  Shorter. 

The  complaint  in  this  case  was  in  the  following  words: 

"Mary  6.  Raulsbury  "|  The  plaintiff  claims  of  the 
vs.  >  defendant  fifty-six    05-100  dol- 

Ezekiel  Alexander.  )  lars,  due  by  account  lor  goods 
and  merchandize  furnished  by  plaintiff  to  defendant,  at 
his  instance  and  request;  which  account  was  payable  on 
the  1st  January,  1.854,  with  interest  thereon.  The  plain- 
till'  avers,  that,  at  the  time  of  the  purchase  of  said  goods 


OF  ALABAMA.  437 


Alexander  v.  Sanlsbury. 


and  merchandise  from  her  b}-  the  defendant,  and  at  the 
Commencement  of  this  suit,  she  (the  said  plaintiff")  was  a 
married  woman,  and  had  a  separate  estate  secured  to  her 
separate  use  by  virtue  of  a  statute,  passed  by  tne  legisla- 
ture of  Alabama,  coMraouly  called  'the  woman's  law;' 
and  that.  Baid  goods  and  merchandize,  so  furnished  to 
defendant  at  his  instance,  were  a  part  of  her  said  separate 
estate." 

The  defendant  demurred  to  the  complaint,  on  the 
following  grounds:  "1st,  bscausc,  on  the  facts  stated  in 
the  complaint,  the  plaintiff  has  no  right  to  maintain  this 
action  in  her  own  name;  2d,  because,  on  the  facts  stated 
in  said  complaint,  the  plaintiff's  husband  should  have 
been  joined  as  co-plaintiff  with  her;  and,  3d,  because 
the  facts  stated  fail  to  show  such  separate  estate  as  will 
authorize  the  maintenance  of  this  suit  by  her  alone." 
The  overruling  of  the  demurrer,  with  other  matters 
which  require  no  particular  notice,  is  now  assigned  as 
error. 

E.  C.  Bullock,  for  appellant,  cited  Pickens  v.  Oliver, 
29  Ala.  51)2;  and  Gibbons  v.  Marquis,  ib.  072. 

GoLDTnwAiTE,  Rice  &  Semple,  contra,  cited  High  v. 
Worley,  33  Ala.  196;  Saunders  v.  Garrett,  33  Ala.  454; 
Smyth  v.  Oliver,  31  Ala.  39;  Drake  v.  Glover,  30  Ala. 
382;  and  Duncan  v.  Stewart,  25  Ala.  408. 

R,  W.  WALKER,  J.— [Feb.  14,  1SG1.]— A  married 
woman,  having  a  statutory  separate  estate,  sells  and  de- 
livers to  the  purchaser  a  portion  of  the  same,  without  the 
coneurrence  of  her  husbaud;  can  she,  by  suit  upon  the 
contract,  in  her  own  name,  recover  of  the  purchaser  the 
value,  or  agreed  price  of  the  property  '.'  Our  opinion  is, 
that  this  question  must  be  answered  in  the  n< 

ction  213]  of  the  Code  provides,  that  "husband  and 
must   be  joiu  d,  either  as  plaintiffs  or  defends 
when  the  wife  has  interest  in  the  subject-matter  of  the. 


438  SUPREME  COURT  ___ 

Alexander  v.  Saulsbury. 

suit,  unless  the  suit  relate  to  her  separate  estate,  wheu 
she  must  sue  or  be  sued  alone.-"     The  effect  of  this  sec- 
tion was  vpiy  carefully  considered  by  the  court,  in  Pickens 
v.  Oliver,  (29  Ala.  528;)  and  it  was  there  held,  that  the 
rule  established  by  the  latter  clause  of  this  section,  "must 
be  confined  to  suits  for  the  corpus  of  the  property,    and 
for  damages  to  the  property  itself,  as  distinguished  from 
its  use."     This  is  clearly  not  a  suit  "for  damages  to  the 
property"  constituting  the  wife's  separate  estate.     If  it 
can  be   maintained   at   all,  it  must  be  upon  the  ground, 
that  it  is  a  suit  for  the  corp u s  of  the  property.     Although 
all  the  property  of  the  wife,  held  by  her  previous  to  her 
marriage,  or  which  she  may  become  entitled  to  after  her 
marriage,  in  any  manner,  is  her   separate   estate,  and  is 
not  subject  to  her  husband's  debts;  yet  all  such  separate 
estate  "vests  in  the  husband,  as  her  trustee,  who  has  the 
right  to  manage  and  control  the  same,  and  is  not  required 
to  account  for  the  rents,  income   or  profits,  to   the  wife, 
her  heirs,  or  legal  representatives." — Code,  §  1983.     Thus 
it  will  be  seen,  that  the  corpus  of  the  property  belongs  to 
the  wife,  while  the  right  to  control  and  manage  the  same, 
free  from  accountability  for  the  rents,  income,  or  profits, 
is  vested  in   the  husband.     Section   1984  provides,  that 
"the-  property  of  the   wife,  or  any  part  thereof,  may  be 
sold  by  the  husband   and   wife,  and  conveyed  by  them 
jointly,  by  instrument  of  writing,  attested   by  two  wit- 
nesses."      This    provision    is    obviously    restrictive    of 
the  right  of  disposition,  and  was   doubtless  intended  to 
prohibit  the  sale  of  the  wife's   property,  except  such  as 
might  be  made  by  the  husband  and  wife. — Smyth  v.  Oli- 
ver, 31  Ala.  43.    See,  also,  Whitman  v.  Abernathy,  33  Ala. 
159;  Rogers  v.  Boyd,   33  Ala.    175;  Drake  v.   Glover, 
30  Ala.  389.     We  thiuk,  therefore,  that  a  transfer  of  her 
statutopy  separate  estate  by  the  wife,  without  the  concur- 
rence of  the  husband,  in  the  manner  provided  by  the 
statute,  is,  in  a  court  of  law  at  least,  absolutely  void,  and 
passes  nothing  to  the  purchaser. — See  Smith  v.  Plower, 
15  East,  607.     The  title  to  the  property  so  transferred  is 


OF  ALABAMA.  4SD 


Alexander  v.  Saulsbury. 


in  nowise  affected  thereby,  and  the  property  remains,  as 
before,  the  separate  estate  of  the  wife. 

By  the  common  law,  a  married  woman  can  neither  sue 
nor  be  sued  alone,  and  all  contracts  made  by  her  are  void. 
1  Parsons  on  Con.  286.  These  disabilities  of  coverture 
the  Code  modifies,  but  does  not  destroy.  Beyond  its  ex- 
press provisions,  married  women  are  no  more  sui  juris 
than  they  were  before  its  adoption. — Pickens  v.  Oliver, 
29  Ala.  528.  Hence  it  follows,  (sq  far,  at  least,  as  a  court 
of  law  is  concerned,)  that  a  married  woman  has  no  legal 
capacity  to  contract  in  relation  to  her  separate  estate,  ex- 
cept for  the  purpose,  and  in  the  manner,  provided  by  the 
statute ;  and  as  a  sale  of  such  separate  estate,  made  by 
the  wife  alone,  without  the  concurrence  of  the  husband, 
is  unauthorized  by  the  statute,  every  such  contract  of 
sale  is  void;  and  being  void,  it  can  form  no  foundation 
for  a  suit  at,  law  in  the  name  of  the  wife. 

It  will  not  do  to  say,  that  a  married  woman,  having  a 
separate  estate,  is  capable  of  electing  to  have  either  the 
property  sold,  or  the  value  or  agreed  price  thereof;  and 
that,  on  her  electing  to  receive  or  sue  for  such  value  or 
agreed  price,  it  becomos  her  separate  estate,  in  lieu  of 
the  property  sold,  which  she  is,  by  such  election,  esto 
from  ever  claiming  thereafter.  If  this  be  so,  of  what 
avail  would  be  the  provisions  of  the  stat.ute,  that  the  hus- 
band shall  manage  and  control  the  estate,  and  receive  the 
profits  without  liability  to  account  to  the  wife,  her  heirs, 
or  representatives;  and  that  no  part  of  the  property  shall 
be  sold  without  his  concurrence?  If  we  are  to  yield 
obedience  to  the  statute,  we  must  hold,  (whenever,  at 
least,  the  question  arises  in  a  court  of  law,)  that  a  married 
woman  is  incapable,  bv  any  independent  act  or  contract 
of  hers,  of  converting,  th  >>t  her  separata  estate. 

It  is  true  that,  in  the  case  of  a  wrong-doer  gelling  prop- 
erty without  title,  the  purchaser,  while  he  holds  under  a 
contract  of  sale,    cannot  resist   the   payment  of  the   pur- 
-money. — Duncan   v.  Stewart,  25  Ala.  418.     But  it 
was  understood,  that  a  person,  by  contracting  with 
a  married  woman,  admitted  her  right  to  puc   in    her  own 


440  SUPREME  COURT 


Manly's  Adm'r  v.  Turnipseed  and  Wife. 


name  on  the  contract,  or  precluded  himself  from  pleading 
her  •  coverture  in  bar  of  such  a  suit.  On  the  contrary, 
the  rule  of  the  common  law  is,  that  if  the  wife  sell  any 
thing,  her  husband  alone  has  the  right  to  recover  the 
price. — 1  Parsons  on  Contracts,  286-7. 

As  the  rulings  of  the  circuit  court  were  in  conflict  with 
these  views,  the  judgment  must  be  reversed,  and  the 
cause  remanded. 


MANLY'S  ADM'R  vs.  TURNIPSEED  and  WIFE. 

,  [DETINUE   FOR  SLAVKS.] 

1.  W  of  limiiai  •  run. — The  statute  of  limita- 
tions does  not  begin  to  run  against  an  intestate's  estate,  until  the 
appointment  of  on  administrator  :  but  it  is  not  necessary  that  there 
should  be  a  domestic  administrator,  when  the  intestate  dies  in  a 
foreign  State,  and  administration  on  his  estate  is  there  granted  by 
the  proper  tribunal,  although  such  foreign  administrator  may  have 
never  had  his  letters  recorded  here,  as  authorized  to  do  by  the  act 
of  1821.     (Clay's  Digest?,  227,  g  31.) 

2.  What  constitutes  adverse  possession. — A  knowledge  on  the  part  of  an 
adverse  holder  that  his  title  is  defective,  does  not,  of  itself,  pre- 
vent the  operation  of  the  statute  of  limitations  in  his  favor. 

APPEAL  from  the  Circuit  Court  of  Calhoun. 
Tried  before  the  Hon.  B.  D.  HALE, 

This  action  was  brought  by  M.  J.  Turn  ley,  as  the  ad- 
ministrator of  Washington  Manly,  deceased,  to  recover 
a  negro  woman  named  Elizabeth,  and  her  five- children  ; 
and  was  commenced  on  the  12th  March,  1857.  The  de- 
fendants pleaded,  "in  short  by  consent,  ne  ungues  admin- 
f'y/ni/nr.  the  statute  of  limitations  of  six  years,  and  the 
geni  ial  issue,  with  leave  to  give  in  evidence  any  matter 
that  might  be  specially  pleaded."     The  woman  Elizabeth, 


OF  ALABAMA.  441 


Manly's  Adm'r  v.  Turnipseed  and  Wife. 


as  appeared  from   the  evidence  adduced  on  the  trial,  be- 
longed to  said   Washington    Manly  at  the   time  of  his 
death,  which  occurred  in  June,  1838,  at  his  residence  in 
Stewart  county,  Georgia  ;  he  dying  intestate,  and  leaving 
a  widow  and  several  children.     In  October,  1838,  the  wid- 
ow and  children   removed  to  Calhoun  county,  Alabama, 
bringing  the  slaves  with  them.     In  December,  1838,  the 
orphans'  court  of  Calhoun  appointed  William    Walker 
guardian  of  said  intestate's  minor  children  ;  and  he  con- 
tinued to  act  in   that  capacity,   having   the  control   and 
management  of  the  slaves,  until  the  23d  January,  1840, 
when  he   resigned,  and   Henry  Amarine  was  appointed 
guardian  in  his  stead.     Some  time  during  the  year  1842 
said  Amarine  married  the  intestate's  widow,  and  he  con- 
tinued to  act  as  the  guardian  of  the  children,  having  the 
possession  and  control  of  the  slaves,  until  the  3d  March, 
184*,  when  he  resigned,  and  William  Barker  was  appoint- 
ed by  said  court   guardian  of  said  children.     In  Novem- 
ber, 184S,  said  Barker  applied  to  said  court  for  an  order 
to  sell  the  slaves;  alleging,  as  the  ground  of  his  applica- 
tion, that  the  intestate's  widow  (then  Mrs.  Amarine)  was 
entitled  to  a  distributive  share  of  them,  and  that   they 
could  not  be  equally  divided   without  a  sale.     The  court 
granted  the  order,  and  the  slaves  were  sold,  pursuant  to 
its  terms,  on  28th  December,   1848,  and  were  purchased 
at   the  sale    by  said  Amarine,    who,  on   the  6th  Decem- 
ber, 1855,   sold   and  conveyed   them    to  the  defendants. 
The  plaintiff's  letters  of  administration  were  granted,  by 
the  probate  court  of  Calhoun  county,  on  the  10th  March, 
There  had  been  no  previous  administration  on  said 
estate   in   this  State;  but   letters  of  administration   had 
been   granted   by  the   proper  court  in   Stewart  county, 
Georgia,  on  the  11th  January,  1847,  to  one  George  L. 
Smith. 

On  the  foregoing  tacts,  the  court  charged  the  jury  as 
follows:  "  If  the  jury  believe,  from  the  evidence,  that 
Washington  Manly  died  in  Georgia,  in  1838,  the  owner 
of  the  woman  Elizabeth  ;  and  that  the  other  negroes  sued 
for  are  the  children  of  Elizabeth;  and  that  said  negroes, 
29 


442  SUPREME  COURT 


Manly's  Adm'r  v.  Turnipseed  and  "Wife. 


shortly  after  the  death  of  said  Manly,  came  to  Alabama 
with  his  widow  and  children;  and  that  in  December, 
1848,  Barker,  acting  as  the  guardian  of  said  children, 
held  and  claimed  the  negroes,  as  such  guardian,  in  g 
faith,  and,  on  that  day,  sold  them  under  an  order  of  the 
orphans'  court  of  said  county,  believing  that  he  was  sell- 
ing and  conveying  a  good  title;  and  that  Amarine  be- 
came the  purchase!*  at  said  sale,  in  good  faith,  and  at  a 
fair  price,  believing  that  he  was  buying  a  good  title  ;  and 
that  ho  complied  with  the  terms  of  the  sale,  took  posses- 
sion of  the  slaves,  and,  in  good  faith,  openly  held,  claimed 
and  controlled  them  as  his  own,  until  the  6th  Decem- 
ber, 1855,  and  then  sold  them  to  the  defendants,  for  a 
fair  and  fall  price,  believing  that  he  was  selling  a  perfect 
title;  and  that  the  defendants  purchased  in  good  faith, 
believing  that  they  were  obtaining  a  good  title,  and  held 
and  claimed  the  slaves  openlv  as  their  own,  down  to  the 
commencement  of  this  suit ;  and  that  George  L.  Smith 
was  appointed  administrator  of  the  estate  of  said  "Wash- 
ington Manly,  in  Stewart  county,  Georgia,  on  the  11th 
January,  1847,  (as  shown  by  the  record  which  has  been 
read  in  evidence.)  where  said  Manly  died;  and  that  said 
Smith,  at  the  time  of  his  said  appointment,  had  notice 
that  said  slaves  were  in  the  county  of  Calhoun  or  Ran- 
dolph, Alabama, — then  the  statute  of  limitations  had,  at 
the  time  this  suit  was  brought,  barred  any  action  to  re- 
cover the  slaves  by  an  administrator  of  said  estate,  and 
they  must  tind  for  the  defendants." 

The  plaintiff  excepted  to  this  charge,  and  requested  the 
court  to  give  the  following  charges,  which  the  court  re- 
fused to  give,  and  the  plaintiff  excepted  to  their  refusal, 
to- wit : 

"1.  If  the  jury  believe  that  the  slaves  were  originally  the 
property  of  Washington  Manly,  who  died  in  Georgia,  in 
1839  ;  and  that  said  slaves  were  removed  into  this  State  in 
1839,  by  the  widow,  without  any  administration  thereon, 
and  have  continued  in  this  State  until  the  present  time; 
and  that  there  was  no  administration  on  Manly's  estate, 
in  Alabama,  until   the  plaintiff  was  appointed   in   1857, 


OF  ALABAMA.  443 


Manly's  Adm'r  v.  Turnipeeed  and  Wife. 


— then  the  statute  of  limitations  would  not  run  in  favor 
of  tbe'defendants  until  the  plaintiffs  said  appointment. 

"2.  If  the  jury  believe  that  the  slaves  were  once  the 
property  of  Washington  Manly,  and  were  removed  from 
Georgia,  by  the  widow,  without  any  administration  there- 
on, and  have  eonlinued  in  this  State  until  the  pre.-ent 
time;  and  that  there  has  been  no  administration  on  said 
slaves,  in  this  State,  until  the  plaintiff1  was  appointed  irr 
1857. — then  the  statute  of  limitations  did  not  run  in  fa- 
vor of  the  defendants  until  the  plaintiff  was  appointed 
administrator,  although  George  L.  Smith  was  appointed' 
administrator  of  tate,  in  Georgia,  in  thoyear  1  s  f 7 . 

"3.  If  the  jury  believe  that.  Amarinc,  at  the  time  he 
purchased  the  slaves,  had  a  knowledge  that  there  had 
been  no  administration  on  Manly's  estate,  then  he  took 
no  title  by  his  purchase  ;  and  if  the  defendants  had  no- 
tice of  a  defect  of  title,  when  they  purchased  from  said 
Amarinc,  they  took  no  title. 

"4.  Th'c  appointment  of  Barker,  as  guardian  of  Man- 
ly's children,  give  him  no  rights  over  the  property  of 
Manly's  estate  here. 

.  If  the  slaves  were  originally  the  property  of  Wash- 
ington Manly,  who  died  in  Georgia  in  1839,  and  were 
removed  here  by  bis -widow,  without  administration,  and 
have  continued  in  this  State  u^  to  the  commencement  of 
this  suit, — then  the  appointment  of  Smith  in  1*47,  as 
shown  by  the  record,  did  nol  vest  the  property  in  him  as 
administrator,  and  the  st  f  limitations  could  not 

run  against  plain tifl  until  his  own  appointment. 

"0.  If  the  jury  believe  that   Amarine  bought,  at  the 

,  guardian's  sale,  with  a  full  knowledge  tii  had 

never  been  administered  npon,  either  in  this  State  or  in 

/ia.  then  his  pui  >od  faith,  and 

statute  would  not  run   in  his  furor;  and  then,  if  th< 
fendanfs    have  not  bold   the  i     than 

y  purchased  from  Amarine,  the  statute  would 
not  effect  a  bar  in  their  f.ivor,  although  Smith  wa-  ap- 
pointed in  1847  in   Georgia. 

"7.  If  the  jury  believe,  from  the  evidence,  that  the  wo- 


444  SUPREME  COURT 


Manly's  Adm'r  v.  Turnipseed  mid   Wife. 


man  Elizabeth  was  the  property  of  plaintiff's  intestate  at 
the  time  of  his  death  in  Georgia  in  1833,  and  was  brought 

to  Alabama,  shortly  after  said  intestate's  death,  by  his 
widow  :  and  that  said  widow  married  Henry  Amarine  in 
this  State;  and  that  said  Amarine  took  possession  of 
Baid  slaves,  as  the  guardian  of  said  Manly's  children,  know- 
ing that  said  slaves  had  [not]  been  administered  ;  and 
that  the  slaves  afterwards  went  into  the  possession  ofBar- 
kcr,  as  the  guardian  of  said  minor  heirs,  atid  were  sold  by 
him  as  such  guardian,  knowing  that  no  administration 
had  been  had  on  them,  and  were  purchased  at  the  sale  by 
Said  Amarine,  with  such  knowledge,  and  the  defendants 
had  knowledge  that  said  slaves  had  never  been  adminis- 
tered upon., — there  could  be  no  good  faith  in  said  several 
sales  and  purchases." 

The  charge  given  by  the  court,  the  refusal  of  the  sev- 
eral charges  asked,  and  the  rulings  of  the  court  on  ques- 
tions of  evidence,  to  which  exceptions  were  reserved,  (but 
Which  require  no  particular  notice,)  are  now  assigned  as 
error. 

G.  (/.  Wjiati.ey,  for  appellant. — When  a  person  dies 
intestate,  the  statute  of  limitations  does  not  begin  to 
run  against  his  estate,  until  the  appointment  of  an  ad- 
ministrator who  is  capable,  of  suing. — Lawson  v.  Lay, 
24  Ala.  186;  Wyatt  v.  Kambo,  29  Ala.  510.  As  the 
phi":  i  iff'a  letters  were  granted  only  a  few  days  before  the 
suit  v:,i<  commenced,  and  there  had  been  no  previous  ad- 
mini  strati  oil  on  his  intestate's  estate  in  this  State,  his 
claim  could  not  be  barred  by  the  statute,  unless  the 
appointment  of  an  administrator  in  Georgia,  in  1847, 
brought,  the  case  within  the  operation  of  the  statute.  But 
no  such  effect  can  be  attributed  to  the  foreign  adminis- 
tration. In  the  absence  of  statutory  regulations,  a  grant 
of  letters  of  administration  has  no  extra-territorial  ope- 
ration, and  an  administrator  can  neither  sue  nor  he  sued 
in  another  State.— Vaughan  v.  Northup,  15  Peters,  2;  Har- 
rison'?. Mahorner,  14  Ala.  834.  Under  our  statute,  (Clay's 
Digest,  227,  §31,)  a  foreign  administrator  may  sue  here, 


OF  ALABAMA.  445 


Manly's  Adm'r  v.  Turnipsecd  and  Wife. 


upon,  complying  with  certain  conditions;  one  of  which 
•conditions  is,  that  he  shall  first  have  his  letters  recorded 
here,  and  give  bond  "for  the  faithful  administration"  of 
the  assets;  and  the  statute  expressly  provides,  that  he 
shall  not  be  entitled  to  receive  pr  recover  any  property  of 
the  estate,  until  he  has  complied  with  these  requisitions. 
A  compliance  with  these  provisions  makes  an  ancillary 
administration  here. — Robinson  v.  Robinson,  11  Ala.  ['00. 
A  foreign  administrator  is  not  hound  to  sue  here:  it  is 
not  his  duty  to  sue  here,  and  he  is  not  guilty  of  a  devas* 
tacit  for  a  failure  to  sue. — Davis  v.  Smith,  5  Geo.  29i.  If 
the  Georgia  administrator  was  not  bound  to  sue  here,  and 
could  not  demand  or  recover  the  property  without  first 
complying  with  the  requisitions  of  our  statutes,  no  right 
of  action  vested  in  him  by  his  appointment,  and  the  stat- 
ute of  limitations  did  not   begin   to   run  against   him. — 

0  Bacon's  Abr.  39^,  note  a;  Johnson  v.  Wren,  3  Stew. 
17!';  1  Kelly,  (Geo.)  3$0.  If  he  had  complied  with,  all 
the  conditions  imposed  by  the  statute,  and  then  com- 
menced suit  to  recover  the  slaves,  his  action  might  have 
been  defeated  by  the  appointment  of  a  domestic  udmiBr 
istrator. — Broughton  v.  Bradley,  34  Ala.  b'J4 ;  o  Mass. 
540.  An  executor  may  commence  suit  before  1.  quali- 
fies; but  the  statute  of  limitations  does  not  begin  to  run, 
until  his  qualification  and  acceptance  of  the  trust. — 6  Geo. 
310". 

li.   To  render  a  plea  of  the  statute  of  limitations  avail- 
able, there  must  be  an  adverse  possession  ;  and  toco 
tote  an  adverse  \  n,  the  holding  must  be   in  g       i 

faith,  and  without  notice.  The  defendants  had  actual 
knowledge  of  the  defect  in  their  own  title,  and  an-  charge- 
able with  implied  notice  of  the  plaintiff's  claim.— John- 
son  v.  Tbweatt,  18  Ala.  717;  Nelson  v.  Allen  ,t  Harris, 

1  Yerger,  o<jo\ 

II.  1 1. in  &  K..i:m  v,  Ai.i  .  White,  contra.— XJi 

the  statute  ol  1821,  (( 

administrator  had  aright  to  com  men cj  suit  , 
recovery  of  ll.  ;  and  lie  was  only  required  to  re 


446 SUPREME  COURT 

Munly's  Adm'r  v.  Turnipseed  and  Wife 

lii ^  letters, give  bond,  &c,  afterthe  rendition  of  ajudgment 
in  his  favor,  before  he  was  entitled  to  receive  the  prop- 
erty. He  was  obliged  to  produce  his  letters  on  the  trial, 
as  the  evidence  of  his  right,  to  sue,  just  as  a  domestic 
administrator  would.  The  recording  of  his  letters,  giv- 
ing bond,  &c,  did  not  constitute  a  condition  precedent 
to  his  right  of  action.  As  we'll  might  it  be  contended, 
that  the  statute  of  limitations  would  not  run,  in  an  attach- 
ment catie,  against  a  foreign  administrator  who  had  com- 
plied with  all  the  requisitions  of  the  act  of  1821,  because 
he  was  required  to  execute  an  attachment  bond  ;  or  that 
the  •tattfte  docs  not  run  against  corporations,  or  in  ac- 
tions of  detinue,  bills  for  injunction,  &c,  and  other  anal- 
ogous cases  in  which  bonds  are  required  of  the  parties 
suing.  All  the  analogies  of  the  law  are  in  favor  of  his 
right  to  sue,  and  the  adjudged  cases  equally  support  it. — 
Shultz  v.  Pulver,  11  Wendell,  361;  McCullough  v. 
Young,  1  Binucy,  63;  Howell  v.  Hair,  15  Ala.  194; 
Broughton  v.  Bradley,  34  Ala.  6U4.  Moreover,-  the  slaves 
were  in  Georgia  at  the  time  of  the  intestate's  death,  and 
the  Georgia  administrator  knew  that  they  had  beeu 
removed  to  Alabama  without  authority  of  law,  and  where 
they  were  to  bo  found  ;  and  it  was  not  only  his  right,  but 
his  duty  to  sue  for  them. 

A.  J.  WALKER,  C.  J.— [June  4th,  1861.]— The  plain- 
tiff's intestate  died  in  possession  of  the  slaves,  for  the 
recovery  of  which  this  suit  is  brought,  and  had  his  dom- 
icile, at  the  time  of  his  death,  in  Georgia.  The  defendants, 
and  the  person  from  whom  they  bought,  have  been  iu 
adverse  possession  for  more  than  six  years  before  the 
commencement  of  salt.  The  plaintiff's  administration 
was  obtained  less  than  six  years  before  the  commence- 
ment of  suit,  and  there  had  been  no  previous  administra- 
tion in  this  State.  There  was  an  administration  in  Qeor- 
gia,  more  than  six  years  before  this  suit  was  brought,  and 
before  the  plaintiff  was  appointed.  If  there  had  been  no 
other  administration  than  the  plaintiff's,  it  is  very  clear 
that  the  defense  of  the  statute  of  limitations  would  not 


OF  ALABAMA.  447 


Munly's  Adm'r  v.  Turnipseed  and  Wife. 


have  been  available.  The  operation  of  the  statute,  alter 
the  death  of  the  intestate,  can  not  commence  until  there 
h  an  administrator. — Lawson  v.  Lay,  24  Ala.  184;  John- 
son v.  Wren,  8  St.  172.  This  is  admitted  by  the  appel- 
lees ;  but  it  is  contended,  that  the  operation  of  the  statute 
is  secured  by  the  existence  of  an  administration  in  Geor- 
gia, to  which  the  right  of  suit  attached  by  virtue  of  our 
Statute,  found  in  Clay's  Digest,  227,  §  31  ;  and  that  is  the 
position,  upon  the  correctness  of  which  we  are  to  decide. 
The  statute  of  limitations  which  applies  to  this  case, 
explicitly  declares;  that  all  actions  of  detinue  shall  be 
commenced  within  six  years  next  after  the  cause  of  such 
action  shall  have  accrued,  and  not  after. — Clay's  Digest, 
o2<i.  §  78.  Notwithstanding  this  explicit  language  of  the 
law,  the  courts,  from  the  clear  justice  and  propriety  of  the 
thing,  have  engrafted  an  exception,  in  favor  of  those 
-  in  which  there  is  no  person  to  sue. — Aug.  on  Lim. 
61,  §o0.  Our  statute  gives  a  right  of  suit,  in  the  absence 
of  an  administration  here,  to  the  administrator  in  a  sister 
State;  audit  would  be  a  manifest  enlargement  of  the 
exception,  to  include  a  case  where  there  was  such  a  for- 
eign administrator.  We.  do  not  pause  to  consider 
whether  it  is  obligatory  upon  the  foreign  administrator 
to  sue,  wlier  there  is  no  administration  in  this  State. — 
Shultz  v.  1'ulver,  11  Wend,  861;  Ilclme  v.  Bandert, 
3  Hawks,  563.  It  may  be  conceded,  that  the  statute 
merely  secures  a  privilege  to  the  foreign  administrator,  of 
Which  he  may  or  may  not  avail  himself  at  his  election; 
and  from  the  concession  no  inference  in  favor  of  the 
i  be  d<  duced.  ri 'he  exception  is  founded 
upon  the  want  of  a  person  w:  me,  and  not  upon  the 

want  of  a  will    t<>  n,    save  ■••    who    are 

acting   in  a  trust  capacity,  is    bound    to  sue.     The    right 
of  suit  i-  :   and    the    operation    of  the 

statute  is    grounded    upon  the   idea,  that   persons   having 
the  perm  f  the  law  to  »ue,  forbear  to  do  .-..,  but 

acquiesce  in  the  assertion  of  a  hostile  right.     Tl 
euey  ot  th<    statute   would    be   Utterly  .   and   it» 


448  SUPREME  COURT 


Manly's  Adm'r  v.  Turnipseed  and 


oommand  disregarded,  if  it  were  allowed  no  operation 

t  where  there  was  an  obligation  to  sue. 

It  is  contended,  however,  that  the  right  of  suit  does  not 
attach  to  the  foreign  administrator,  by  virtue  of  hia  for- 
eign appointment,  hut  grows  out  of  his  recording  the  let- 
ters of  administration,  and  giving  bond,  as  required  by 
our  statute;  and  that,  upon  complying  with  those  requi- 
sites, an  ancillary  administration  springs  up  in  this  State, 
under  which  the  suit  is  maintained,  and  the  assets  re- 
ceived. This  argument  is  supposed  to  be  favored  by  the 
fact,  that  this  court,  in  Robinson  v.  Robinson,  (11  Ala. 
947,;  spoke,  arguendo,  of  the  recording  of  the  letters  of 
administration,  and  giving  the  prescribed  bond,  as  "in 
effect  an  ancillary  administration."  We  do  not  think 
the  argument,  is  supported  by  the  incidental  remark 
alluded  to.  The  court  intended  nothing  more  than  to 
convey  the  idea,  that  a  foreign  administrator,  who  had 
complied  with  the  statute,  bad  authority,  like  that  of  an 
ancillary  administrator  appointed  in  this  State,  to  re- 
cover assets  ot  the  estate,  wine))  were  the  subject  of  an 
administration  in  this  State.  That  a  foreign  administra- 
tor, who  complies  with  our  statute,  does  not  become  an 
ancillary  administrator,  and  recover  assets  here  in  a  new 
Capacity,  derived  in  this  State,  is  conclusively  shown  iu 
the  case  ot  B  rough  ton  v.  Bradley,  34  Ala.  Gi>4.  W  such 
I  .''n  administrator  became  an  ancillary  administrator, 
within  the  jurisdiction  of  this  State,  it  would  follow,  that 
no  ancillary  administrator  could  afterwards  be  appointed 
in  this  State,  and  that  the  authority  of  the  foreign  admin- 
istrator could  not  be  overthrown  by  the  appointment  of 
an  ancillary  administrator ;  yet  the  reverse  of  these  things 
is  held  in  the  ease  referred  to. 

The  conclusion  can  not  be  resisted,  that  a  foreign  ad- 
ministrator, under  our  statute,  is  permitted  to  act  in  this 
State,  by  virtue  of  his  foreign  appointment,  and  in  the 
capacity  derived  from  that  appointment.  The  langui 
of  the  statute  itself  does  not  admit  of  any  other  conclu- 
sion. It  bestows  the  right  upon  the  foreign  administra- 
tor to  maintain  any  action,  to   demand  and  receive  any 


OF  ALABAMA.  440 


Manly's  Adm'r  v.  Turuipseed  and  Wife. 


debt,  ami  to  exercise  all  the  right*  and  privileges  wh:ch 
he  would  have  done  if  duly  appointed  and  qualified  in 
this  State.  It  does  not  even  require  that  the  letters  of 
administration  should  be  recordea  before  suit  is  brought^ 
The  foreign  administrator  is  permitted  to  sue  here,  with- 
out a  solitary  preliminary  step.  This  conclusively  shows, 
that  our  law  recognizes  in  him  a  right -of  action  by  vir- 
tue of  the  foreign  appointment.  The  requisition,  that  the 
foreign  administrator  shall,  before  receiving  any  assets  of 
the  estate,  record  his  letters  of  administration,  and  give 
bond,  does  not  militate  against  the  operation  of  the  stat- 
ute. The  prescribing  of  conditions,  necessary  for  the 
security  of  persons  interested,  as  a  preliminary  to  a  rem- 
edy, can  not  justify  an  exception  from  the  statute.  If  it 
did,  there  could  be  no  prescription  against  an  action 
which  the  law  required  should  be  preceded  by  the  giving 
of  security  for  cost,  or  other  bond;  and  yet,  we  apprehend, 
an  argument  for  the  exemption  of  6uch  eases  from  the 
statute  would  not  be  made. 

The  statute  of  limitations  was  designed  to  be  one  of 
repose.  Its  effect  is  beneficent.  It  quiets  titles,  lessens 
litigation,  and  promotes  justice,  by  requiring  the  settle- 
ment of  controversies  before  tunc  has  obliterated  any  of 
the  evidence.  Its  operation  ought  to  be  maintained  with 
a  steady  hand.  Tins  we  should  not  do,  if  we  allowed  it 
no  effect  against  a  foreign  administrator,  clothed  by  our 
law  with  a  right  to  sue.  A  foreign  administrator,  if  he 
is  not  affected  by  our  statute  of  limitations,  might  design- 
edly fold  his  hands,  and  remain  quiet,  until  time  should 
destroy  nil  the  evidences  upon  which  a  just  defense  de- 
pended, and  then  obtain  an  unrighteous  r  It 
would  be  a  most  unjust  ami  unreasonable  discrimination, 
to  bar  by  the  lapse  of  time  the  claims  of  our  own  adtnin- 
'  no  limit  to  the  right  ol  the 
same  claims,  in  1  n  administrator;  yetthil 
discrimination  the  appellant                I  'make.     When  the 

a   righ!  ign   admini 

tors  it  must  have  intended    that   they  should 
to  the  same  dministrah  i 


450  SUPREME  COURT 


utor  v.  Speer  and  Wife. 


[2.]  The  bill  of  exceptions  contains  the  entire  evi- 
We  clearly  perceive  that  the  ruling  of  the  court, 
in  refusing  to  suppress  the  answer  mentioned  in  the  brief 
of  appellant's  counsel,  even  if  erroneous,  did  not  affect 
the  result  of  the  trial,  and  did  the  appellant  no  in- 
jury. A  knowledge  on  fhe  part  of  an  adverse  holder  that 
his  title  was  defective,  would  not,  of  itself,  prevent  the 
operation  of  the  statute  in  his  behalf. 

We  do  not  deem  it  necessary  to  notice  particularly  each 
separate  charge  asked,  and  each  ruling  upon  evidence. 
What  we  have  said  covers  all  the  points  made  by  the 
counsel.  There  is  no  reversible  error  in  any  of  the  rul- 
ings of  the  court  below,  and  its  judgment  must  be  af- 
firmed. 


GREENE'S  EXECJJTOR  vs.  SPEER  and  WIFE. 

[final  hetti.ksiknt  ami  distribution  of  decedent's  estate.] 

1.   A  I  f  partial  intestacy. — Tn  cases  of  partial  intes- 

tacy, a  Ivancementa  are  ao.t  re  luired  lo  be  brought  into  hotchpoti 
Le,  \\  L582,  L596,)  to  entitle  the  parties  to  share  in  the  property 
undisposed  of  by  the  will. 

Appeal  from  the  Probate  Court  of  Marengo. 

In  the  matter  of  the  estate  of  Richard  Greene,  deceased, 
on  final  settlement  of  the  accounts  of  Thomas  J.  Woolf, 
the  executor,  and  distribution  of  that  part  of  the  estate 
which  was  left  undisposed  of  by  the  decedent's  will. 
The  decedent  died  in  August,  1856,  leaving  a  widow  and 
six  children.  By  his  last  will  and  testament,  which  was 
executed  on  the  14th  August,  LSo2,  and  duly  admitted  to 
probate  soon  after  his  death,  he  gave  the  bulk  of  his 
estate,   which  consisted  of  lands,   slaves,   money,  &c,  iu 


OF  ALABAxM A.  451 


Greene's  Executory  Speer  and  Wife. 


specific  legacies  to  his  wife  and  children  ;  but  died  intes- 
tate as  to  certain  personal  property,  which  had  been 
acquired  by  him  after  the  execution  of  his  will,  and 
which  was  sold  by  the  executor  under  an  order  of  the 
probate  court;  the  proceeds  of  sale,  after  deducting  the 
costs  and  expenses  of  administration,  amounting  to  more 
than  $7,000.  The  executor  filed  a  petition  in  the  probate 
court,  alleging  that  the  testator,  after  the  execution  of 
his  will,  had  given  to  his  daughter  Julia,  the  wife  of 
William  S.  Speer,  two  negroes,  valued  at  $2,200,  and 
$600  in  money,  and  that  this  property  was  given  to  her 
as  an  advancement;  and  praying  that  Speer  and  wife 
might  be  required  to  bring  this  property  into  hotchpot, 
or  be  excluded  from  the  distribution  of  the  funds  in  his 
hands  arising  from  the  sale  of  the  property  undisposed  of 
by  the  will.  The  court  sustained  a  demurrer  to  this  peti- 
tion, and,  on  the  final  settlement,  decreed  to  Mrs.  Speer 
a  distributive  share  of  the  funds  equal  to  the  shares  of  the 
other  children.  The  executor  excepted  to  this  decision 
and  decree  of  the  court,  and  he  now  assigns  the  same  as 
error. 

Brooks  k  Garrott,  for  appellant. — Section  1582  of  the 
Code  requires,  that  advancements,  made  by  an  intestate 
in  his  life-time,  shall  be  brought  into  hotchpot;  and  sec- 
tion 1596  expressly  provides,  that,  in  cases  of  partial 
intestacy,  "all  property  not  disposed  of  by  will  must  be 
distributed  :is  in  cases  of  intestacy."  As  the 
were  «\>  scific,  anil  could  not  be  adeemed,  the  distribution 
could  only  be  equalized  by  bringing  the  property  into 
hotchpot.  "A  ease  of  parti  d  intestacy  tails  under  the 
ral  law  applicable  I  of  that  character,  which 

|  for  distribution  of  the  property  not  thed, 

as  if  no  will  at  all  had  been  made." — Bryan  v.  \ 

:\  Ala.  205. 

.  T.   1.  v  •  2  «>f  the  Code  ap. 

|       i  only  to  the  iown   by  the 

cntiro   chapter   of  which   it   form-  a  part.      The  statutes 


452 SUPREME  COURT 

Greene's  Executor  v.  Speer  and  Wife. 

relative  to  advancements,  and  all  the  legal  principles 
which  the  courts  have  applied  to  the  subject,  are  in- 
tended to  effectuate  the  presumed  desire  and  intention  of 
parents,  in  making  an  equal  aud  impartial  distribution  of 
their  estates  among  those  who  have  equal  claims  on  their 
affection  aud  bounty.  To  apply  the  same  rule  in  cases  of 
partial  intestacy,  instead  of  equalizing  the  distribution, 
would,  in  most  cases,  creategreat  injustice,  and  violate  the 
intention  of  the  testator.  Whether  a  gift  is  to  be  con- 
sidered an  advancement,  is  a  question  of  intention,  and 
depends  on  the  circumstances  attending  the  transaction. 
The  subsequent  execution  of  a  will,  without  noticing  such 
gift,  is  strong  evidence  of  an  intention  that  the  gift  shall 
not  operate  as  an  advancement;  aud  equally  strong  evi- 
dence would  be  afforded,  where  the  gift  was  made  after 
the  execution  of  the  will,  if  no  corresponding  change,  by 
amendment  or  codicil,  was  made  in  the  will.  These 
views  are  fully  sustained  by  the  following  authorities: 
2  Wms.  on  Exrs.  128b*;  2  Lomax  on  Exrs.  3G3,  3G5; 
Thompson  v.  Carmichael,  3  Sandf.  Ch.  120;  Newman  v. 
Wilbourne,  1  Hill's  Ch.  10;  Snelgrove  v.  Snelgrove, 
4  Dess.  274;'  Donneli  v.  Mateer,  5  Iredell's  Eq.  7.  • 

STONE,  J.— [June  28,  1861.]— We  have  duly  consid- 
ered the  single  question  presented  by  the  assignments  of 
error  in  this  case,  and  are.  satisfied  the  judgment  of  the 
probate  court  must  be  affirmed.  Section  15&2  of  the 
Code,  which  declares  the  rule  for  bringing  advance- 
ments into  hotchpot,  refers  alone  to  estates  of  intestates. 
Looking  only  to  this  section,  it  would  require  bold  inter- 
polation to  bring  under  its  influence  estates  of  testators 
who  left  portions  of  their  estates  undisposed  of  by  their 
wills. 

The  argument  for  appellant  rests  mainly  for  its  support 
on  section  1596  of  the  Code.  The  argument  carries  the 
language  of  the  statute  too  far.  It  (the  statute)  provides 
only  for  "property  uot  disposed  of  by  will."  What 
property?  Certainly,  property  owned  by  the  testator  at  the 
time  of  his  death ;  not  property  which  lie  had  previously 


OF  ALABAMA.  453 


Greene's  Executor  v.  Speer  aiul  Wife. 


given  off.     This  property  "must  be  administered  and  dis- 
tributed as  in  cases  of  intestacy." 

The  doctrine  of  hotchpot  rests,  for  its  justification,  on 
the  presumed  desire  of  decedents  to  equalize  the  portions 
of  all  distributees  standing  in  the  same  relation  to  them. 
In  cases  of  intestacy,  it  operates  with  justice  and  equality, 
tor  it  bears  alike  on  all  vrho  have  been  advanced.  This 
would  rarely  be  the  case,  where  there  is  a  will.  In  a  ma- 
jority of  cases,  parents,  during  their  life-time,  have  made 
gifts,  by  way  of  advancement,  to  their  older  children  :  and 
when  they  come  to  make  a  will,  they  usually  attempt  to 
make  up  to  the  children  not  advanced,  what  they,  in  their 
discretion,  intend  as  the  equivalent  of  the  advancements 
previously  given  off.  In  other  words,  the  advancements 
given  off,  and  the  bequests  contained  in  the  will,  are,  col- 
lectively, the  distribution  which  the  testator  desires  to 
make.  Now,  let  it  be  supposed  that  a  testator,  after  exe- 
cuting his  will  on  the  theory  above  supposed,  should  ma- 
terially increase  his  estate  by  his  industry,  or  by  receiving 
a  legacy;  and  as  to  such  after-acquired  estate,  should  die 
intestate.  Would  not  the  doctrine  here  contended  for 
lead  to  the  most  shocking  inequality  ?  And  yet,  in  a  ma- 
jority of  cases,  this  precise  result  would  follow.  Any 
rule  we  lay  down,  in  reference  to  advancements  and 
hotchpot  i rv  cases  of  partial  intestacy,  must  be  uniform, 
and  operate  alike  in  all  cases,  unless  the  testator  lias 
given  express  directions  to  the  contrary.  We  think  a 
rule  which  should  require  advancements  to  be  brought  in, 
in  cases  of  partial  intestacy,  would  work  much  greater 
oppression,  than  to  follow  the  letter  of  section  loS2  of 
the  Code,  and  limit  the  doctrine  to  cases  of  intestacy 
proper. 

We  have  thus  far  considered  this  question  on  the  lan- 
guage of  the  statute,  and  the  spirit  which  dictated  its 
enactment.  The  authorities,  both  English  and  American, 
fully  sustain  our  views.  Sir  Wm.  Grant,  speaking  of  this 
doctrine,  said,  "I  conceive,  the  provision  in  the  statute 
of  distributions  applies  only  to  the  case  of  actual  intes- 
tacy."—Walton  v.  Walton,  14  Vesey,  324.      Chief-Jus- 


454 SUPREME  COURT 

Espy  v.  Jon< 

tice  Ruffin,  in  Donnell  v.  Mateer,  (5  Iredell's  Equity, 
11,)  said,  "With  respect  to  a  personal  residue,  it  has 
been  always  held,  that  it  is  to  be  divided  equally 
amongst  the  next  of  kin,  without  regard  to  gifts,  either 
in  the  life-time  of  the  testator,  or  by  his  will."  In  Thomp- 
son v.  Carmichael,  (3  Sandf.  Ch.  129,)  it  was  said,  "When 
one  has  advanced  a  part  of  his  children,  and  then  by  will 
devises  property  to  the  residue,  leaving  other  property 
undisposed  of;  it  is  a  legal  and  reasonable  presumption* 
that  he  intended  the  latter  to  go  to  both  classes  of  his 
children  equally,  if  any  of  it  remained  at  his  death.  As 
to  one  class,  lie  has  been  his  own  executor;  as  to  the 
other,  he  has  by  his  will  placed  them  on  an  equal  footing 
with  the  first  class."  To  the  same  effect  are  Twisden  v. 
Twisden,  9  Vesey,  426;  Johnson  v.  Johnson,  4  Ired.  Law, 
9;  Sinkler  v.  Sinkler,  2  Dess.  189;  Snelgrove  v.  Snel- 
grove,  4  Dess.  291 ;  2  Wms.  on  Exrs.  1286;  2  Lomax  on 
Exrs.  365,  §  15;  Newman  v.  Wilbourne,  1  Hill's  Ch,  10. 
Decree  affirmed'. 


ESPY  vs.  JONES. 

[ACTION   FOB  B4CZACR  OF  PROMISE  TO  liAKKY.] 

1.  Admi nihility  of  seduction  in  aggravation  of  damages. — If  evidence  o| 
seduction  can  be  received,  in  any  case,  to  aggravate  the  damages 
in  an  action  for  a  breach  of  promise  to  marry,  it  is  only  where  the 
seduction  follows  the  promise,  and  is  effected  by  means  of  it: 
seduction  prior  to  the  promise  is  not  admissible  evidence. 

2.  Charge  misleading  jury. — A  charge  which  predicates  the  plaintiff's 
right  to  recover  on  the  proof  of  a  promise  and  breach  thereof,  and 
entirely  disregards  the  evidence  adduced  by  the  defendant  tending 
to  Khow  a  justification  of  the  breach,  is  erroneous. 

3.  Assent  of  parties  to  contract. — It  is  essential  to  the  validity  of  a  con- 
tract to  marry,  that  there  should  be  reciprocal  promises  between 
the  parties  ;  but,  if  a  man   makes  an  express  offer  or  promise  of 


OF  ALABAMA.  455 


Espy  v.  Jones, 


marriage  to  a  woman,  her  acceptance  and  reciprocal  promise  may 
be  established  by  proof  of  her  conduct  and  action  at  the  time,  as 
well  as  by  express  words. 

■i.  Justification  of  breach  of  promise  to  marry. — If  a  man  promises  to 
marry  a  woman  whom  he  believes  to  1"'  virtuous  and  modest,  and 
afterwards  discovers  that  she  is  loose  nnd  immodest,  he  is  justified 
in  breaking  his  promise;  but,  to  entitle  him  to  a  verdict  on  that 
ground,  the  jury  must  be  satisfied  that  the  plaintiff  is  a  loose  and 
immodest  woman,  that  the  defendant  broke  his  promise  on  that 
account,  and  that  he  did  not  know  her  character  at  the  time  he 
made  the  promise. 

5.  Admissibility  of  plaintiff**  toant  of  chastity  in  mitigation  of  damages. 
Acts  of  fornication,  committed  by  the  plaintiff  prior  to  the  de- 
fendant's promise  to  marry  her,  and  in  which  the  defendant  him- 
self participated,  are  not  admissible  evidence  for  him  in  mitigation 
of  the  damages. 

Appeal  from  the  Circuit  Court  of  Marengo. 
Tried  before  the. Hod.  Robert  Dougherty. 

This  action  was  brought  by  Maria  F.  Jones,  against 
David  Espy,  to  recover  damages  for  a  breach  of  promise 
of  marriage.  The  defendant  pleaded  the  general  issue, 
"in  short  by  consent,  with  leave  to  give  any  special  mat- 
ter in  evidence."  On  the  trial,  as  the  bill  of  exceptions 
states,  one  of  the  plaintiff's  sisters,  who  was  examined  as 
a  witness  on  her  behalf,  testified,  "that  she  heard  defend- 
ant, in  1853,  u>k  plaintiff's  mother  for  her,  and  that,  in 
1854,  plaintiff  prepared  her  dress  to  marry  defendant;" 
and  this  witness  and  another  sister  both  testified,  that  on 
the  5th  March.  185G,  in  their  presence,  defendant  prom- 
ised to  marry  plaintiff  in  ten  days,  in  order  to  induce  her 
to  sign  a  paper,  which  he  had  prepared,  instructing  the 
circuit  clerk  to  dismiss  certain  proceedings  under  the 
bastardy  act,  which  she  had  instituted  against  him;  that 
be  repeated  the  pr<>nii-c  after  the  plaintiff  had  signed  the 
paper;  that  the  plaintiff  several  times  prepared  her 
clothes,  in  anticipation  of  the  marriage,  and  that  tl. 
Pendant  always  failed  to  come.  It  appeared  that  the 
plaintiff  had  given  birth  to  an  illegitimate  child,  on  or 
about  the  1st  March,  1864,  and  had  instituted  pr< 
ings  under  the  bastardy  act  against  the  defendant  as  its 


456 SUPREME  COURT 

Espy  v.  Jones. 

putative  father;  and  the  circuit  court  allowed  the  plain- 
tiff", against  the  defendant's  objection,  to  read  the  record 
of  these  proceedings  as  evidence  to  the  jury  ;  but  after- 
wards instructed  the  jury,  "that  they  were  not  to  con- 
sider the  record  and  papers  in  the  bastardy  case  as 
evidence  to  prove  the  promise  of  marriage,  or  any  issue 
in  the  cause."  The  circuit  court  also  allowed  the  plain- 
tiff, against  the  defendant's  objection,  "to  introduce  her 
child  for  the  inspection  of  the  jury,  in  order  to  prove,  by 
its  alleged  resemblance  to  the  defendant,  that  said  child 
was  begotten  by  him;  but  there  was  no  other  evidence 
before  the  jury,  tending  to  prove  that  the  defendant  was 
the  father  of  said  child."  The  plaintiff  adduced  evidence, 
"tending  to  show  that,  until  her  acquaintance  and  associ- 
ation with  the  defendant,  her  character  was  good;"  while 
the  defendant's  evidence  tended  to  show,  "that  her  char- 
acter for  chastity  was  bad,  before  and  after  the  promise 
of  marriage  testified  to  by  plaintiff's  sisters,  and  before 
ever  he  became  acquainted  with  her."  The  defendant 
read  in  evidence  the  deposition  of  Dr.  Vaughn,  a  prac- 
ticing physician,  who  testified,  that  he  attended  and  pre- 
scribed for  plaintiff,  in  1849,  when  she  was  infected  with 
a  venereal  disease;  "and  there  was  no  evidence  tending 
to  show  that  defendant,  before  he  made  such  alleged 
promise,  had  any  knowledge  or  information  of  her  condi- 
tion as  testified  to  by  Dr.  Vaughn,  or  that  she  had  any 
venereal  disease."  The  defendant  reserved  several  excep- 
tions to  the  rulings  of  the  court  on  the  evidence,  which 
the  decision  of  this  court  renders  it  unnecessary  to  state 
at  greater  length. 

The  circuit  court  charged  the  jury,  among  other  things: 
"2.  That  if  they  should  find,  from  the  evidence,  that 
the  defendant  had  promised  to  marry  the  plaintiff",  and 
that  there  had  been  a  breach  of  that  promise,  and  that 
this  action  was  commenced  within  twelve  months  from 
said  breach,  tlun  they  must  find  for  the  plaintiff"." 

"3.  That  if  they  believed  the  testimony  of  the  plain- 
tiff's sisters,"  as  to  the  defendant's  conduct  and  declara- 
tions on  the  5-h  March,  1856,  "and  that  the  plaintiff 


OF  ALABAMA. 457 

Espy  v.  Jones. 


assented  to  the  proposition"'  then  made  by  him,  then  there 
was  a  contract  of  marriage  between  the  parties;  and  .that 
if  the  defendant  afterwards  failed  and  refused  to  marry 
the  plaintiff,  this  was  a  broach  of  said  contract  on  his 
part." 

The  defendant  excepted  to  these  charges,  and  requested 
the  court  to  instruct  the  jury — 

"1.  That  if  the  defendant  committed  fornication  with 
the  plaintiff,  and  got  a  bastard  child  by  her,  and  if  she 
has  been  wronged  in  so  doing,  the  law  has  provided 
proper  remedies  for  such  wrongs;  but  the  jury  can  give 
no  damages  in  this  case  on  account  of  such  acts,  if  they 
were  committed  before  the  1st  January,  1855,  if  the  con- 
tract relied  on  was  made  on  the  5th  March,  1856. 

"'2.  That  if  the  plaintiff  committed  fornication  with 
the  defendant,  and  had  a  bastard  child  by  him,  before  the 
1st  January,  1855,  the  jury  may  consider  that  fact  in 
mitigation,  but  not  in  aggravation,  of  the  damages  arising 
from  the  breach  of  any  promise  subsequently  made. 

"  3.  That  if  they  believed  the  plaintiff  had  committed 
fornication  before  the  defendant's  promise  was  made,  and 
that  fact  was  unknown  to  him  when  he  made  the  promise, 
lie  had  the  right  to  refuse,  on  that  account,  to  marry  her; 
and,  in  such  case,  they  must  find  for  the  defendant. 

"4.  That  if  they  believed,  from  the  evidence,  that  the 
plaintiff  had  a  venereal  disease  before  the  defendant 
made  the  promise,  and  that  lac!  was  then  unknown  to 
him,  he  had  the  right  to  refuse,  on  that  account,  to  marry 
her;  and,  in  such  case,  they  must  find  for  the  defendant.'' 

The  court  refused  each  ot  these  charges,  and  the  de- 
fendant excepted  to  their  refusal  ;  and  he  now  as 
error  all  the  rulings  of  the  court  to  which  he  reserved 
exceptions. 

Lomax  &  Primoh,  and  Wm.  M.  Bbooks,  fbr  appellant. 

I.  W.  Gaki;  fra. 

R.  YV.  WALKER,  J.— [Feb.  15,  1861.]— It  has  b 
much  questioned,  whether,  in  an  action  to  recover  dam- 
80 


SUPREME  COURT 

Espy  v.  Jones. 


for  the  breach  of  a  prouise  of  marriage,  damnges 
for  seduction  may  be  recovered.  It  has  been  distinctly 
held  in  Kentucky  and  Pennsylvania,  that  in  such  action 
seduction  cannot  be  given  in  evidence  in  aggravation  of 
the  damages. — Weaver  v.  Bachert,  2  Barr,  80;  Burks  v. 
Sbaio,  2  Bibb,  341;  see,  also,  Perkins  v.  Kersey,  1  R.  I. 
493.  On  the  other  hand,  the  rule  adopted  in  Massachu- 
setts, New  York,  and  several  other  States,  is,  that  where 
seduction  has  been  practiced  under  color  of  a  promise  of 
marriage,  the  jury  may  consider  it  to  aggravate  the  dam- 
ages in  an  action  on  the  contract. — Paul  v.  Frazier, 
3  Mass,  73  ;  Whalen  v.  Layman,  2  Blackf.  104;  King  v. 
Kersey,  2  Carter,  402;  Tubbs  v.  Vankleek,  12  111.  446; 
Wells  v.  Padgett,  8  Barb.  323;  Green  v.  Spencer,  3  Miss. 
318;  Conn  v.  Wilson,  2  Overton,  233. 

Mr.  Parsons  suggests,  that  damages  for  seduction 
should  be  excluded,  where  the  plaintiff  was  in  actual  or 
constructive  service,  or  lived  in  a  state  in  which  the 
statute  law  gave  her  an  action  for  the  seduction;  and  not 
otherwise. — 1  Parsons  Contr.  553. 

But  we  need  not  consider  this  question  in  the  present 
case.  It  is  very  clear  that,  if  seduction  can  ever  be 
allowed  to  aggravate  the  damages,  where  the  action  is 
for  breach  of  promise  of  marriage,  it  is  only  in  those 
cases  where  the  seduction  follows  the  promise,  and  is 
effected  by  means  of  it.  We  can  conceive  of  no  princi- 
ple, upon  which  a  seduction  before  the  promise  of  mar- 
riage, and  which,  therefore,  could  not  have  been  a  con- 
sequence of  such  promise,  should  be  permitted  to  swell 
the  damages  in  an  action  on  the  contract. — Burks  v. 
Shain,  2  Bibb,  343;  Tubbs  v.  Vankleek,  12  111.  447- 
The  court  erred,  in  refusing  to  give  the  first  charge  asked 
by  the  defendant. 

[2.]  The  second  charge  given  was  erroneous.  It  af- 
firms, in  efiect,  that  if  there  was  a  promise  to  marry,  and 
breach  of  that  promise  by  the  defendant,  the  jury  must 
find  for  the  plaintiff,  without  regard  to  any  testimony 
which  had  been  introduced  tending  to  justify  the  breach. 

As   the  judgment   must   be   reversed   for  the   errors 


OF  ALABAMA.  459 


Espy  v.  Jones. 


already  pointed  out,  we  need  not  go  into  a  "particular 
examination  of  the  other  questions  presented  by  the 
record.  It  will  be  sufficient  for  the  future  conduct  of  the 
cause,  if  we  lay  down  some  general  principles  which 
govern  actions  of  this  sort. 

[3.]  It  is  essential  to  the  validity  of  a  contract  to  marry, 
that  the  promises  should  be  reciprocal.  But,  if  a  man 
makes  an  express  offer  or  promise  of  marriage  to  a 
woman,  the  acceptance  thereof  by  the  latter,  and  the 
promise  made  by  her  in  return,  may,  so  far  as  it  is  neces- 
sary to  be  proved,  in  order  to  enable  her  to  sustain  an 
action  against  the  man  for  a  breach  of  his  engagement, 
be  established  through  the  medium  of  i.er  conduct  and 
actions  at  the  time,  as  well  as  by  express  words.  If  a 
man  offers  to  many  a  woman,  provided  she  will  come 
from  America  to  England,  or  any  distant  part,  and  marry 
him  ;  and  the  woman  forthwith  undertakes  the  journey, 
and  is  ready  and  willing  to  marry  at  the  place  appointed, 
this  is  evidence  of  the  acceptance  of  the  offer,  and  of  a 
reciprocal  promise  on  her  part,  which  will  enable  hei  to 
maintain  an  action  for  a  breach  of  promise  of  marriage. — 
Addison  Contr.  677  ;  Ilutton  v.  Mansell,  0  Mod.  172; 
Daniel  v.  Bowles,  2  C.  &  P.  553;  Wetmore  v.  Wells, 
1  Ohio,  26 ;  Wightman  v.  Coates,  15  Mass.  1. 

[4.]  The  general  rule,  as  to  what  will  justify  the  breach 
of  a  promise  of  marriage,  cannot  be  better  stated  than  in 
the  words  of  Abbott,  C.  J.,  in  Irving  v.  Greenwood,  1  C. 
&  P.  350.  "If  any  man  has  been  paying  his  addresses  to 
one  that  he  supposes  to  be  a  modest  person,  and  after- 
wards discovers  her  to  be  a  loose  and  immodest  woman, 
he  is  justified  in  breaking  any  promise  of  marriage  he 
may  have  made  to  her;  but,  to  entitle  a  defendant  to  a 
verdict  on  that  ground,  the  jury  must  be  satisfied  that  the 
plaint  id*  was  a  loose  and  immodest  woman,  and  that  the 
defendant  broke  hit  promise  on  that  account ;  and  they 
must  also  be  satisfied  that  the  defendant  did  not  know 
her  character  at  the  time  of  the  promise;  for,  if  a  man 
knowingly  promise  to  marry  such  a  person,  he  is  bound 
to  do  so."     See,  also,  Capchart   v.   Carradine,   4  Strob. 


SUPREME 


dm'r. 


42,  ;  »k,  I   !'.-;>.  256;  Palmer  v.  Andn 

7  Wend.  144;  Boynton  v.  Kellogg,  3  Mass.  188; 
v.  Merrick,  1  Cafr.  &  E.  468. 

[">.]  It  is  to  l»e  inferred  from  what  is  said  in    Beach  v. 
Merrick,  1  Carr.  &    K  .  a,)  that  although  a  \)vc\ 

act  of  fornication  by  the   plaintiff,  which   was   known  to 
the  defendant  when  he  made  the  promise,  will  be  n 

■  to  tin  action,  still  it  will  go  to  lessen  the  dam 
Bee  1  Parsons  Cotitr.  550,  note  (<l.)  But  this  proposition 
istdenied  in  Butler  v.  Eschleman,  (18  111.  44.)  which  de- 
cides, that  facts  of  conduct  or  character  of  the  plaintiff, 
known  to  the  defendant  at  the  time  of  the  promise,  can 
neither  he  set  up  in  bat*  of  the  action,  nor  in  mitigation 
of  damages.  However  the  general  rule  may  bd  on  this 
subject,  we  are  satisfied,  that  if  the  criminal  misconduct 
of  the  plaintiff  was  not  only  known  to  the  defendant  when 
lie  made  the  promise,  but  had  been  encouraged  and  par- 
ticipated in  by  him,  ho  will  not  be  heard  to  urge  such 
misconduct  in  mitigation  of  the  damages.  Accordingly, 
if  the  plaintiff  committed  fornication  with  the  defendant, 

re  the  making  of  the  promise,  that  fact  cannot  b 
up   in   mitigation  of  the   damages;  for  that  would  be  to 
permit  a  man  to  take  advantage  of  his  own  fault. — Sec 
Butler  v.  Eschleman,  supra  ;  Boynton  v.  Kellogg,  3  V 
189. 

Judgment  reversed,  and  cause  remanded. 


BELL  w.  BELL'S  ADM'R. 

1 1*1: i  ini  k   for   si.avks,   iiy    wiik's  aoainst  husband's  ADMINISTRATOR.] 

1.  Adverse  possession  between  husband  and  wife ;  prescription, — At com- 
mon hiw,  the  possession  of  personal  property  by  the  wife,  during 
coverture,  is  the  possession  of  the  husband,  and  cannot  ripen  into 
a  perfect  title  in  her,  as  against  the  husband's  administrator,  al- 


OF  ALABAMA. 461 

Bel]  v.  Bell's  Adm'r. 


though  it  is  shown  that  the  husband  had  abandoned  her  when  her 

>n  commenced ;  that  he  never  afterwards  returned, to  her, 

and  t  he  property  ;  and    that  she  held 

and  claimed  it,  as  her  own  individual  property,  for  a  continuous 

id  of  more  than  twenty  j 

APPEAL  from  the  Circuit  Court  of  Wilcox. 
Tried  before  the  lion.  John  K.  Henry. 

Turs  action  was  brought  by  the  administrator  of  Mrs. 
Lucy  Bell,  deceased,  agaipst  Williara  C.  Bell,  to  recover 
pertain  slaves,  which  the  defendant-  held  and  claimed  as 
the  administrator  «d'  W,  Bell,  deceased,  who  was 

in  his  life-time  the  husband  of  the  plaintiff's  iutesl 
and  was  commenced  on  the  10th  March,  1858.  Thecase 
re  this  court  at  its  June  term,  18G0,  and  may  he 
found  reported  in  36  Ala.  166-82.  The  ftiets  in  proof  on 
the  second  trial,  aa  se(  out  in  the  hill  of  exceptions,  were 
substantially  the  same  as  on  the  first  trial,  and  may  he 
thus  stated  :  W.  and  Lucy  Bell  were  married,   in 

this  Slate,  in   the  year    i  I   Lucy  being  then 

widow  of  John  Raiford,  di  .:  and  tbey  lived  together 

as  man  and  wife,    in  Clarke  count}-,  until    1821,   1822  or 
.  (the  witnesses  could  not  r<  the  precise  time,) 

when  Bell  left  his  wife  and   family,  ami  went   to  Mobile, 
where  he   continued   to  live  until   his  death,    which 
curred   in  til  .  (two  oi- 

lier abandonment  by  her  husband,)  Mrs* 
1  to    Wilcox  co  .  er   live    chil- 

dren (three  by  tlaii  >rd,  and  two  by   Bell)  with  1. 

ido   there   until  her  death,    in   i 
Bupportii  r  child  tan  without  any  a 

and.     Ii. 

of  John   Raiford 

ite,  a  negro  woman 
1  Linda,  who,  will,  |  bal  tim 

' 

nued  in  the  uni 

I  n   individual   p 
I  all  the  ordinal  -  jhip    over   tl 


2 SUPREME  COURT 

Bellv.  Bell's  Adm'r. 


ap  t<»  the  time  of  her  death.     Letters  of  administration 

on  the  estate  of  George  W.  15. '11  were  granted  to  the  de- 
fendant on  the  4th  October,  1855,  (whether  before  or  after 
the  death  of  Mrs.  Bell,  the  record  nowhere  shows.)  and 
he  soon  afterwards  took  possession  of  the  slaves,  claiming 
them  as  apart  of  his  in  testate's  estate,  and  returned  them 
as  such  in  his  inventory.  Letters  of  administration  on 
the  estate  of  Mrs.  Lucy  Bell  were  granted  to  the  plaintiff 
on  the  17th  December,  1£ 

"On  the'  fbregoing  evidence,  the  court  charged  the 
jury,  that  if  they  believed,  from  the  evidence,  that  the 
plaintiff's  intestate,  Mrs.  Lucy  Bell,  received  the  e 
sued  for  from  the  administrator  of  her  former  husband) 
as  her  distributive  Bhare  of  said  estate;  and  that  tie 
fendant's  intestate,  George  W.  Bell,  at  and  before  that 
time,  had  abandoned  his  wife,  the  said  Lucy,  and  never 
lived  with  her  any  more;  and  that  the  plaintiff's  ii 
tate  retained  the  said  slaves  in  her  undisturbed  possession 
for  a  period  of  more  than  twenty  years  before  her  death, 
and  up  to  and  alter  the  death  of  her  said  husband,  with- 
out any  claim  to  them  being  set  up  on  his  part ;  and  that' 
the  plaintiff's  intestate,  during  this  whole  period  of 
twenty  years  possession,  had  the  entire  and  undisturbed 
control  of  said  slaves,  exercising  acts  of  ownership  over 
them,  and  openly  and  notoriously  claiming  them  as  her 
own  individual  property  all  the  time, — then  the  law 
would  raise  the  presumption  from  these  facts,  if  unex- 
plained, that  Bhe  acquired  the  property  in  such  way  as  to 
prevent  the  marital  rights  of  her  husband  from  attaching, 
and  to  vest  the  property  in  her  to  the  exclusion  of  her 
husband's  marital  right.-;  and  this,  notwithstanding  said 
George  W.  Bell  died  before  the  twenty  years  possession 
had  elapsed,  and  there  was  no  administrator  on  his  estate 
until  after  the  twenty  years  possession  had  elapsed." 

The  defendant  excepted  to  this  charge,  and  requested 
the  court  to  instruct  the  jury,  "that,  if  they  believed  all 
the  evidence,  they  mtifit  find  for  the  defendant;"  which 
charge  the  court  refused  to  give,  and  the  defendant  ex- 
cepted to  its  refusal. 


OF  ALABAMA. 


Bell  v.  Ball's  Adru'r. 


The  charge  given,  and  the  refusal  of  the  charge  risked, 
are  now  assigned  as  error. 

Byrd  &  Moroait,  with  L.  8.  Lude,  for  appellant. — 
The  doctrine  of  prescription  is  founded  on  the  pre- 
sumption of  acquiescence  in  t!i  tiori  of  a  hostile 
claim,  and  requires  an  adverse  possession  to  support  it. — 
Cockrell  v.  Brown,  38  Ala.  38;  Rouhdtree  v.  Brantley, 
M:i.  544.  But  there  can  be  no  adverse  possession  be- 
ind  and  wife.  At  common  law,  the  po 
siou  of  the  wife,  during  coverture,  is  tl  ission  of  the 
husband,  and  cannot  become  antagonistic  to  his  rights. 
There  can  be  no  presumption  of  acquiescence  on  his  part 
in  the  assertion  of  a  hostile  claim  by  the  wife,  because 
he  has  no  remedy  by  action  against  her.  To  say  that  he 
has  a  remedy  by  simply  asserting  his  marital  rights,  and 
that  lis  failure  to  assert  them  during  coverture  shows  an 
abandonment  of  them,  is,  in  effect,  to  make  the  wife's 
title  depend,  not  on  the  doctrine  of  prescription,  but  on 
the  husband  r,  which,  as  WAS  decided  on 
the  former  appeal,  can  hi                ich  effect. — 36  Ala.  466. 

D.  W.  Baine,  contra.— I  ion,  in  i:     tech- 

nical sense,  is  not  a  a  ingredient  of  a  title  by  [de- 

scription.    If  it  were,  the  doctrine  of  prescription  would 
be  entirely  u  od  meaningless,  since  the  title  would, 

in    every  case,  be    compb  te,  under  the  shorter  statute  of 
limitations,  personal  property  is  in  < 

troversy,)  long  before  the  prescription  could  be  invo 
The  doctrine  imption,  d  by  the  charge  of 

•  below,  thing  more    than    the  old   - 

mon-l.iu  :h;in  a  statute  of  limita- 

tions.    These  latter  bai  dy,  and  operated  on 

the  title  only  in  that  way.     But  the  doctrine  of  \ 
lion  pply  to  i .  which  ti 

n    by   t 

d  in  McArthur 
2.     It  requires  for  its  appli- 
.  i  laim  <>f  right,  incoi 


SUPREME  COURT 

Bell  v.  Bell's  Adm'r. 

, . — — — ___ — _ 

with,  and  hostile  to,  the  claim  sought  to  be  barred;  and 
this  is  the  true  test,  as  established  by  many  aualogous 
ions. 

Thus,  it  has  been  hold,  that  an  administrator,  who 
makes  an  illegal  and  void  sale  of  the  property  of  the 
tate,  is  estopped  by  his  own  act  from  suing  for  the  prop- 
erty ;  and  that  the  statute  of  limitations  does  not  begin 
to  run  in  favor  of  the  purchaser,  as  against  the  estate, 
until  the  appointment  of  a  succeeding  administrator;  in 
other  words,  that  the  purchaser  cannot  be  considered  as 
holding  adversely,  in  the  strict  technical  sense  of  the 
term,  until  there  is  some  one  who  has  a  right  to  sue. — 
Pistole  v.  Street,  5  Porter,  14;  Hopper  v.  Steele,  18  Ala. 
828;  Lay  v.  Lawson,  24  Ala.  188;  Wyatt's  Adm'r  v. 
Ranibo,  29  Ala.  525.  Yet  it  has  been  held  also,  in  an 
equal  number  of  cases,  that  if  the  purchaser  holds  posses- 
sion for  twenty  years,  his  title  will  be  protected  by  the 
indulgence  of  the  presumption,  that  a  valid  authority  to 
sell  originally  existed. — Gantt  v.  Phillips,  23  Ala.  275; 
Lay  v.  Lawson,  23  Ala.  301;  McArthur  v.  Carrie,  32  Ala. 
75;  Wyatt's  Adm'r  v.  Scott,  33  Ala.  317.  So,  it  has 
been  held.,  that  the  p  ^session  of  a  mortgagor  or  purchaser 
of  lands  cannot  be  adverse  until  the  debt  is  paid;  (Byrd 
v.  McDaniel,  33  Ala.  IS;  Relfe  v.  Relfe,  34  Ala.  505;) 
yet,  if  such1,  m   continues  twenty  years,  the   title 

becomes  perfect  by  the  presumption  of  payment.  It  is 
said  in  the  case  last  cited,  that  "it  would  be  a  violation 
of  all  principle  to  allow  the  acquisition  of  title  by  the 
lapse  of  time;"  yet  the  same  result  is  attained  by  apply- 
ing the  doctrine  of  presumption,— thus  clearly  recogniz- 
ing the  difference  between  the  two  principles. — See,  also, 
Harvey  v.  Thorpe,  ,28  Ala,  2G-1;  Rhodes  v.  Turner, 
21  Ala.  210. 

The  cases  above  cited  show,  that,  after  the  lapse  of 
twenty  years,  a  deed,  payment,  grant  of  administration, 
regular  order  of  sale,  or  (to  use  the  language  of  the  court, 
in  Sims  v.  Aughtery,  supra,)  "almost  anything  ele>e, 
will  be  presumed,  to  (juiet  the  possession.  Why  cannot 
the  principle  be  invoked  by  the  wife,  in  a  case  Jike  this? 


OF  ALABAMA.  V  465 


Bell  v.  Roll's  Adm'r. 


Her  possession,  it  is  true,  is,  technically,  the  possession 
of  her  husband;  but  in  the  same  sense  the  possession  of 
the  mortgagor  or  purchaser  is  that  of  the  mortgagee  or 
vendor.  On  the  facts  supposed  in  the  charge,  her  pos- 
session has  been  under  claim  of  right,  and  has  continued 
more  than  twenty  years  ;  and  it  is  the  duty  of  the  courts, 
when  asked  to  disturb  her  possession,  to  presume  that 
she  claimed  a  separate  estate  in  the  property,  or  anything 
else  that  will  perfect  her  title. 

A.  J.  WALKER,  C.  J.— [June  10th,  1861.]— When 
this  case  was  before  in  this  court,  we  announced  the  prin- 
ciple, applicable  to  cases  governed  hy  the  common  law 
that  the  wife  can  not  possess  personal  property;  that  her 
possession  is  the  possession  of  the  husband,  and  that  this 
principle  resulted  from  th-e  unity  of  husband  and  wife. 
It  is  not  the  same  principle  which  applies  to  the  relation 
of  mortgagor  and  mortgagee,  and  of  landlord  and  tenant. 
In  those  cases,  the  doctrine  that  the  possession  of  the  one 
is  the  possession  of  the  other,  grows  out  of  the  law  of 
estoppel.     The  possession  of  the  wife  is  the  j  n  of 

the  husband,  because  her  legal  existence  is  merged  in  his, 
and  the  wife  is  positively  incapable  of  a  possession,  in  the 

if  the  law,  distinct  from  that  of  the  husband.     From 
this  principle  it  is  an  inevitable  deduction,  that  the  law 

is  the   husband  of  Mrs.   Bell  to  have   been,  through 
her,  in  p  a   of  the  properly    in    controversy    up  to 

his  death.     This  being  tl  vas  no  antagonism 

of  possession  ou  the  part  of  Mrs.  Bell  to  her  husband.    It 
•ntended,  and  indeed  it  could  not  be,  either  upon 
authorit;.  on,  that  the  presumption,  which  is  drawn 

for  tl  ing  of  tit!  sa  from  the  lap-.-  of  time,  is  per- 

ible  in    tl  of  any  enjoyment  of  the  right 

al  to  ttial  sought  to  he   bar: 
e    think  it    clear,  that  1!  i  in  of 

n  of 

Bell,  under  a  claim  of  title  in   herself,  would 
1  derived,  under  t 


SUPKKME  COT'RT 


Bell  v.  Bell'a  A-lin'r. 


mon  law,  would  enure  to  the  husband  ;  and  thus  we  would 
have  the  wife's  antagonistic  •  in  divesting  the  hus- 

band's title,  which  would  by  operation  of  law  be 
in  the  husband. 

We  do   not  intend,  in  any   thing  we  have  said,  to  in- 
fringe the  doctrine,  that  in  equity  the  wife  is  deemi 
to  her  separate  estate,  a  femme  sole.     It  may  he  tin 
a  wife  were  in  possession   of  property,  claiming  openl 
that  it  was  conveyed  to  her  as  a  separate  estate,  so  as  to 
exclude  the  husband's  marital  rights;  and  if  she  had  con- 
tinued to   possess  and   enjoy   the  property,    under 
claim   of  it  as  a  separate  estate,   for  more  than   twenty 
years,  the  law  would  presume,  against   the  husband,  that 
the  claim  was  founded  on  a  valid  conveyance  creating  a 
separate  estate.     In  a  court  of  equity,  the  wife  is  allowed 
to  assert  her  claim  to  a  separate  estate  in  antagonism  of 
her  husband's  rights.     But  those  principles  can   not  aid 
!.     It  raises  the  presumption,  not  upon 
the  fact  of  the  long-continued  assertion  by  Mrs.  Bel)  of  a 
claim  that  the  slaves  were   conveyed  to  her  as  a  separate 
estate,  but  upon   the  fact  that  she   was  deserted   by  her 
husband,  and  claimed  and  possessed  the  slaves  "as  her 
owirindividual    property."     There  is  a  clear  distinction 
between  the  claim  of  a  separate  estate,  created  in  sn 
manner  as  to  exclude  the  husband's  marital  rights,  and  a 
naked  claim  of  title  in  the  wife  against  the  husband.     A 
wife  may  claim  that   a  separate  estate  was  vested  in   her. 
She  can  not  claim  thai  Bhe  holds  property  in  p  u  ad- 

versely to  her  husband,  except  upon  the  ground  that  it  is 
a  separal  ;    for  her  possession,  except  so  far  as 

chancery  recognizes  her  right  to  hold  a  separate  estate 
and  confers  upon  her,  in  reference  to  such  estate,  the 
privileges  of  a  femme  sole,  is  the  possession  of  the  hus- 
band. The  possession  by  Mrs.  Bell,  claiming  that  the 
slaves  belonged  to  her,  and  that  she  held  them  adversely 
to  her  husband,  no  matter  how  long,  could  never  avail. 
An  adverse  p  >n,  or  an  antagonistic  enjoyment,  for 

twenty  years,  may   create  the  presumption  of  a  title  in 
favor  of  persons  iui  juris.     It  never  can  create  the  presump- 


OF  ALABAMA.  467 


"Watt's  A'lm'r  v.  Watt's  IHstribateos. 


tion  of  a  title  in  the  wife  clothed  with  the  quality  of  an 
exclusion  of  the  husband's  marital  rights.  If  the  absurd- 
ity could  be  conceived,  ot  a  wife's  holding  adversely  to 
her  husband,  what  reason  or  authority  is  there  to  support 
the  position,  that  she  thereby  not  only  acquired  a  title, 
but  a  title  of  such  a  character  as  to  exclude  the  husband? 

There  was  no  evidence  conducing  to  show  that  Mrs. 
Bell  ever  claimed  to  hold  the  slaves  under  any  conveys 
Bnce  which  created  a  separate  estate.  The  court,  there- 
fore, erred  in  refusing  the  charge  asked  by  the  defendant, 
as  well  as  in  the  charge  given. 

Reversed  and  remanded. 


WATT'S  ADM'R  vs.  WATT'S  DISTRIBUTEES. 

[FINAL  KFTTI.F.MFNT   OF   ADMINISTRATOR'S  ACCOtTHTS.] 

8  of  final  decree.  —  A  decree  of  tlio  pi  mrt,  which 

purports  to  have  b  m  final  settlement  "I'  the  accounts 

and  and 

vhich  had  come  t..  his  hands,  the 
amount  of  his  disbursements,  and  tl  i"fi  En  his  hands fbr 

ribution  among  creditors-;  and   by  which    i-it  ie  ordered,  ad- 
jud  that  the   account,  a&  stated   by  the  i 

illowed,  i  tid  Bled  a-  a  final  -< •  1 1 lt>- 

ive,  until  reversed  by  the 
].  ro- 
ll ich 
.■  n(  of  tli- 

■ 

,n    Un- 
tile 
forn 

• 


SUPREME  COURT 


Watt's  Adm'r  v.  Watt's  Distributees. 


i  ion  of  said  allowed  claims,  be   equally  di 
among  the  four  minor  heirs  of"  the  decedent, — has  not  | 
Bites  of  a  final  decree,  and  will  not  support  eith  :ecution  or 

an  appeal. 

Appeal  from  the  Probate  Court  of  Sumter. 

In  the  matter  of  the  estate  of  George  L.  Watt,  d< 
on  final  settlement  of  the  accounts  and  vouchers  of  Joel 
"Watt,  the  administrator.  The  citation  was  issued  on  the 
12th  March,  1860.  The  administrator  appeared  at  the 
ensuing  April  term,  and  moved  the  court  to  dismiss  the 
proceeding  on  the  ground  that  the  estate  had  been  de- 
clared insolvent  in  September,  185"),  and  that  he  had 
made  a  final  settlement  of  his  administration  on  the  17th 
January,  1857;  and,  in  support  of  his  motion,  offered  in 
evidence  the  decrees  rendered  by  said  probate  court  at 
■  times.  "After  hearing  the  evidence,  and  the  argu- 
ment of  counsel,  the  court  overruled  said  motion;  where- 
upon the  defendant  excepted.  The  court  then  proposed 
aside  and  vacate  so  much  of  the  said  decree  of  Jan- 
uary 17,  1857,  as  declared  said  settlement  to  be  final  :  to 
which  action  of  the  court  the  defendant  objected.  The 
court  overruled  the  objection,  vacated  so  much  of 
decree  as  declared  said  settlement  to  be  final,  and  pro- 
ite  an  account  in  accordance  with  the  cita- 
tion ;   to  which  the  defendant  excepted." 

The  decree  of  January  17,1857,  and  the  decree  from 
which  this  appeal  was  taken,  are  in  the  following  words: 

"January  17,  1857.  This  day  came  up  for  final  action 
and  decree,  in  pursuance  of  a  former  order  of  this  court, 
and  after  advertisement  for  three  successive  weeks  in  the 

Mint-current  and  vouchers  of  the 
administrator  for  a  final  settlement  of  his  administration 
of  the  estate  of  George  L.  Watt,  deceased  ;  which,  upon 
examination,  shows  a  receipt  of  assets  to  the  amount  of 
.  and  disbursements,  properly  vouched,  to  the 
amount  of  £355  40;  leaving  a  balance  of  §1585  88  for  dis- 
tribution among  the  creditors  of  said  estate.     And  it  ap 


OF  ALABAMA.  4fi9 


Watt's  Aditi'r  v.  Watt's  Distributees. 


pearing  that  said  account  is  legally  and  fairly  stated,  and 
properly  vouched,  it  is  ordered,  adjudged,  and  decreed, 
that  the  same  b  i  r<  ceived,  passed,  allowed,  recorded  and 
filed  as  a  final  settlement  of  said  estate.  After  a  careful 
examination,  the  following  claims  were  rejected  and  dis- 
allowed, for  want  of  legal  proof  of  their  correctness," 
(specifying  them.)  "  It  is  ordered,  that  said  estate  pay 
eighty  per  cent,  on  the  claims  (iled  and  allowed  against 
said  estafr 

'•  Probate  Court  oi  Sumter,  April  term,  1860. 
"This  day  came  up  for  action  and  decree,  in  pursuance 
of  an  order  made  at  the  March  term,  1800,  the  account 
stated  by  this  court,  under  section  1817  of  the  Code  of 
Alabama,  against  Joel  Watt,  administrator  of  the  estate 
of  George  L.  Watt,  deceased;  and  notice  having  been 
issued  and  executed  upon  said  Joel  Watt,  requiring  him 
to  file  his  account-current  and  vouchers  for  a  final  settle- 
ment on  this  day,  and  notifying  him  that,  if  he  failed  to 
file  them,  the  court  would  pass  the  account  heretofore 
stated  against  him;  the  said  Joel  Watt  came  into  court, 
and  moved  to  dismiss  said  proceedings  against  him,  be- 
cause the  citation  w;.  •  inse  raid 
estate  was  declared  insolvent,  and  final  settlement  of  it 
made  in  January,  1857;  the  apart  has  no  juris- 
diction over  the  matter,  and  because  neither  the  creditors 
DOr  the  heirs  of  said  I  I  are  parties  to  the  proceed- 
ing. Thecourl  overruled  said  motion  {  and  the  said  Joel 
Watt  refusing  to  file  his  account-current  and  vouchers  for 
a  settlement,  the  court  proceeded  to  examine  and  pass 
the  account  her  inst  him.  The  ac- 
count thus  stated  by  the  gainst  the  said  ad  mi  nil-; 
Irator,  charges  him  with  the  followii  nich  are 
shown  to  have  come  into  hi-  ion,  and  not  to  have 
accounted  for  or  dial  i  by  him,  and  which  were 
totally  omitted  in  bis  form  incut — to-wit," 
to  the  amount  of  81  The  d< 
then  allows  credits  to  the  administrator,  amountii  %•.» 
;  48,  and  pr                   —  "Ami  it  appearing  to  the 


470  SUPREME  COURT 


-  Adm'r  v.  Watt's  Distributees. 


satisfaction  of  the  court,  that  the  said  amount  I  99) 

bharged  against  said  administrator  as  aforesaid,  came  into 
his  p  m  as  such  administrator;  and  that  he  omitted 

to  account  for,  or  charge  himself  with  said  sum,  in  his 
settlement  made  on  the  17th  January,  1857;  and  that 
only  $223  48  of  said  sum  lias  been  disbursed  on  behalf  of 
the  estate,  the  creditors,  or  the  heirs-at-law;  and  it'  fur- 
ther appearing  to  the  court,  that  the  omission  of  the  ad- 
ministrator to  charge  himself  with  the  amount  of  said 
account  of  sales  and  inventory,  in  conformity  with  the 
first  subdivision  of  section  1802  of  the  Code,  as  well  as 
his  failure  to  distribute  the  same,  renders  void  the  decree 
made  on  the  settlement  of  January  17,  1857, — it  is  now 
therefore  considered,  ordered,  and  decreed  by  the  court, 
that  so  much  of  said  decree  as  declares  the  said  settle- 
ment of  January  17,  1857,  to  be  final,  be,  and  the  same  is 
hereby,  so  amended  and  altered  as  to  make  the  same — 
what  it  was  in  fact — a  partial  settlement  and  distribution 
of  said  estate,  and  to  render  the  said  Joel  vVatt,  adminis- 
trator of  said  estate,  accountable  to  this  court  lor  the 
goods,  chattels  and  moneys  of  his  intestate,  which  he  is 
shown  to  have  omitted  charging  himself  with  in  his  ac- 
count gassed  upon  the  17th  January,  1857.  It  is  also 
considered  and  decreed  by  the  court,  that  the  claims 
which  were  allowed  by  this  court  in  the  settlement  of 
17th  January,  1857,  be  paid  in  full,  and  that  whatever 
sum  shall  remain,  after  the  satisfaction  of  said  allowed 
claim-,  be  equally  divided  among  the  four  minor  heirs  of 
the  said  George  L.  Watt,  deceased;  and  it  appearing  to 
the  satisfaction  of  the  court,  that  said  administrator  has 
overpaid  several  of  the  creditors  heretofore,  by  reason  of 
the  rejection  of  their  claims,  it  is  considered  and  decreed- 
that  he  retain,  in  all  such  cases,  whatever  may  be  still 
due  them  on  their  allowed  claims,  to  reimburse  him  for 
said  payments  on  claims  that  were  rejected.  It  is  fur- 
ther ordered,  that  the  judgments  on  execution  docket  Ho. 
10,  in  favor  of  the  creditors  and  heirs-at-law  of  the  said 
George  L.  Watt,  be,  and  the  same  are  hereby,  made  a 
part  of  this  record,  and  that  executions  may  issue  on  said 


OF  ALABAMA.  471 


Watt's  Adm'r  v.  Watt's  Distributees. 


Judgments,  for  the  amounts  due  said  creditors  and  heirs- 
at-law  respectively.  It  is  further  (ink-rod.  that  in  order 
to  make  up  a  complete  record  of  the  said  Case,  the  inven- 
tory, account  of  sales,  and  settlement  made  on  the  17th 
January,  1857,  be,  and  the  same  are  hereby,  made  a  part 
of  the  record  in  this  cae 

The  overruling  of  the  motion  to   dismiss  the  ] 
ings,  and  the    decree  rendered   by  the  court,  are   now 
signed  as  error  by  the  administrator. 

Coleman  &  Van  deGraff,  for  appellant. 

STONE,  J.— [July  11,  1861.]— In  January,  1857,  a  final 
settlement  was  had  of  the  administration  of  appellant  on. 
the  estate  of  George  L.  Watt,  deceased.  Thus  the  mat- 
ter rested  for  three  years,  when  these  proceedings  were 
set  on  foot  to  bring  the  administrator  to  another  settle- 
ment; and  in  such  new  proceedings,  the  attempt  was 
made  to  hold  the  appellant  accountable  for  other  assets 
of  the  dfctate,  which,  it  is  alleged,  were  in  his  hands  at 
the  time  of  the  first  nt,  and  were  not  accounted 

for.     To  these  proceedings  the  administrator  inter]  ■ 

bar  the  decree  on  the  former  final  settlement.     This 
defense  the  probate  court  overruled,  and  thereupon  \. 
ted  the  former  judgment  as  a  final  decree,  and  pronounced 
it  to  he  only  a  partial  settlement. 

On  what  evidence  the  probate  court  acted  in  vacating 
the  former  decree  in  part,  and  rendering  a  new  one,  we 
are  not  informed  It  is  obvious  that  the  record  did  not 
furnish  evidence  that  there  had  b.eu  any  clerical  error 
in  the  matter  of  entering  up  the  decree  which  the 
court  in  I  le.     On  the  contrary,  it  is  clear  that  the 

judicial  mind  did  pass  and  pronounce  on  the  question  of 
the  amount  of  assets  in  the  administrator's  hands,  and 
announced  the  result.  It  is  also  clear  that  the  probate 
court  did  decree  aud  determine  that  the  settlement  then 
le  was — what  it  purported  to  be — a  final  settlement. 
81 A  decree  rendered  under  such  circumstances,  is  binding 


•  partii  .  until   it  is  reversed  in  the  pr< 

court  rendering  it  has  rto  pov< 
or  annul  it." — Barnctt  v.  Tarrcn  Allman 

en,  31  Ala.  161  \  v.  L  3  Ala.  2 

Norman  v.  Norman,  .   Duke  v.  I» 

mona  v.   !'■  Via.  406;    Matthew 

Doutliitt,  27  Ala.  -T'"'-.   Caution  \\  I    this  term; 

ih.     15    Ala  Landreth    v.    Landreth, 

.    Morrison   v.  Morrison, 
v.  Ins.  (',,..  1  !  A:. i.  rkins  v.  Moore,  IG  Ala.  12. 

Al t liouLfli  it   may  be,  and  probably  is  true,  that  in  the 
settlement  of  January,  1857,  there  wasa  failure  t< 
tin1  appellant  with  certain  assets  of  the  estate  in  his  ha: 
yet  tin1  final  decree  then  rendered  must  forei  the 

door  to  a  re-investigation  <>('iliat  question,  in  that  court. 
That   tin  an   end  of  litig  ad  that   the 

sanctity  ami  inviolability  of  the  judgments  of  the  courts 
having  competeut  jurisdiction  are  of    infinitely  grei 
importance   than   the  complete  justice  of  an   individual 
.    arc    propositions   vindicated    alike   by   reason    and 
uthority.— -1  i 

We  have  Baid  thus  much  on  the  merits  ol  tliis  ca 
and  from  the  principles  above  announced,  it  is  manifest 
that,  in  the  proceeding  of  the  probate  court   of  Sun 
since  January,  1857,  thai  court  has  mistaken  its  powers. 
It  should  .  II   orderi    ii  has  made,  in  what  we  have 

characterized  a.-  the  renewed  proceedings.     But,  under 
later  proceedings,  there  does  not  appear  to   have 
any  final  decree  rendered.     True,  the  principles  of 
a  decree  arc  laid  down  ;  but  no  judgments  were  rendered, 
rtaining  any  amounts  due  to  t  lie  various  persons, — the 
distributees  in  particular;   nor,  indeed,  are  the  name 
the  distributees  mentioned  in  the  record.     The  balance 
is  not  ascertained,  and   the  persons   betweeu   whom  the 
money  is  to  be   divided,  are  described    simply  as    "the 
minor  heirs  of  said  George  J;.  AVatt,  deceased."     Nothing 
•  lone  which  placed  the  case   in   a  condition  for 
collection,  or  for  the  issue  of  executions  for  the  collection 


OF  ALABAMA.  473 


Crymesv.  WhiteSi  Johnson. 


of  the  amount.  That  is  not  a  money  judgment,  which 
does  not  authorize  the  issue  of  an  execution  ;  and  no  exe- 
cution could  issue  forth  lined  balances.  The 
judgments,  to  be  final,  should  have  been  spi  cific,  and  in 
favor  ol  the  several  distrib  j  name. — Brazeale  v\ 
Braaeale,  9  Ala.  491;  Merrill  v.  Jones, 8  Poi  Bettfl 
*-.  Blackwell,  2  8.  &P.  873;  JudgeofLime  nch, 
8  S.  &  P.  263;  Ilollis  v.  Caughman,  22  Ala.  478;  Harri- 
son.               .  7  Ala.  739;   Andrews  v.  Hall, 

There  being  no  final  decree  in  the  matter  of  the  renewed 
proceedii  e  appeal  must  he  dismissed. 


CRYMES  05.  WHITE  k  JOHNSON. 

riOS  ON  OM  I  FOR  GOODS  SOLD  AXD   DELIVERED.] 

1.  toitwotry  ni  taw.— Where  to  tho 

ndant  in  an  acti  >n  i 
of  disprovin .  -■■  \\  hich  ny  liis 

adn  ^ 

■with  a  ;  a* 

where  he  plead  ■     ue  to 

was  i  f 

.•   i 
ually,  be  i 
t)i  l(  th< 

■  ■ 

I 
■td       ■    - 

i 

vi«l  . 

1 2313,)  in  i  b  > 

said  J  »v  :n.: .  •  *  | 

81 


474 SUPREME  COURT 

mes  v.  White  &  Johnson; 


Appeal  from  the  Circuit  Court  of  Macon. 
Tried  before  the  lion.  Robert  Dougherty. 

This  action  was  brought  by  the  appellees,  suing  as  late 
partners,  and  was  founded  on  an  open  account  for  goods,, 
wares  ami  merchandize,  sold  and  delivered  to  the  defend- 
ant during  the  years  1853  and  lb54.  The  defendant 
pleaded,  "that  he  is  not  indebted  to  the  said  firm  of 
"White  &  Johnson,  as  the  plaintiffs  have  above  com- 
plained," kc. ;  and  issue,  was  joined  on  that  plea.  The 
only  matter  in  controversy  on  tho  trial  was  the  validity 
of  eci  tain  payments  made  by  the  defendant  to  the  plain- 
tiff Johnson;  and  the  only  questions  presented  for  revis- 
ion in  this  court,  relate  to  the  rulings  of  the  circuit  court 
on  the  admissibility  of  evidence  touching  that  matter. 
The  material  iacts  are  stated  in  the  opinion  of  the  court. 

Gunn  &  Strange,  for  appellant. 
Clopton  &  Ligon,  contra. 

R.  W.  WALKER,  J.— [July  3, 1861.] — 1.  The  plaintiffs 
propounded  interrogatories  to  the  defendant,  under  the 
statute.  The  defendant  had  interposed  the  plea  of  pay- 
ment; and  the  plaintiffs,  with  the  view  of  meeting  this 
defense,  among  other  questions,  inquired  of  the  defend- 
an',  with  whom,  and  at  what  time,  he  had  settled  the 
nuts  sued  on,  how  much  of  the  same  he  had  paid  in 
money,  and  how  much  was  paid  in  individual  debts  due 
iiom  -Johnson,  one  of  the  plaintiffs,  to  the  defendant. 
TIk  defendant,  in  answering,  stated,  that  he  had  settled 
the  accounts  sued  on  with  the  plaintiff  Johnson  ;  that  he 
had  paid  the  same  partly  in  cash,  and  partly  in  medical 
a.  .mints  due  from  Johnson  to  him  ;  and  in  reference  to 
the  account  of  1853,  he  adds:  "Defendant  made  said 
payments,  and  said  credits  were  made,  after  said  White 
had  sold  out  his  interest  in  the  concern  of  White  &  John- 
sou,  and  while  Johnsen  was  the  sole  owner  of  the  goods, 
notes,  books  of  account,  &c."  On  motion  of  the  plain- 
tiffs, this  part  of  the  defendant's  answer  was  suppressed 


OF  ALABAMA.  475 


Crvmos  v.  White  &  Johnson. 


by  the  court.  Giving  to  the  sections  of  the  Code  (§§2330-6) 
Authorizing  the  examination  of  parties  by  interrogatories, 
the  same  construction  which  was  put  upon  the  old  stat- 
ute on  that  subject,  (Clay's  Digest,  341,   §  100,)  we  must 
hold,  that  the  court  erred  in  suppressing  that  portion  of 
the  defendant's  answer  above  quoted.     According  to  our 
former  decisions,   interrogatories   under  the  statute  are 
governed  by  the  same  rules  that  apply  to  bills  of  discov- 
ery in  chancery,  so  far  as  relates  to  the  nature  of  the  dis- 
covery sought,  and  the  effect  of  the  answers  as  evidence 
when  made.     In  Kaltmarsh  v.  Bower,  (22  Ala.  221,)  this 
subject   underwent  a    careful    consideration ;  and   it  was 
there   held,  that,  as- in  an   answer  to  a  bill  of  discovery, 
nothing  can    be  considered   impertinent,  which  tends  to 
disprove  the  existence  of  the  cause  of  action  or  defense 
set  up  in  the  bill  ;  so  an  answer  to  interrogatories  under 
the  statute,  whether  it  is  purely  responsive,  or  contains 
affirmative  irresponsive   allegations  in  avoidance  of  the 
demand,  cannot  be  made  the  subject-matter  of  exception. 
See,  also,  Pritchett  v.  Munroe,  22  Ala.   501;  Wilson  v. 
Maria,  21  Ala.  350.     In   the   present  case,  the  plaintiffs 
sought  to  elicit  from  the  defendant  the  fact,  that   all  of 
the  payments  he  relied  on  had  been    made  to  Johnson, 
and  that  in  part  they  were  made  by  discharging  the  indi- 
vidual indebtedness  of  Johnson  to  the   defendant.     Ac- 
cording to  the  principle  settled  in  the  cases  cited  supra, 
the  defendant  was  not  bound  to  confine  himself  to  a  sim- 
ple admission  or  denial  of  the  facts  thus  sought  to  be 
elicited.     If  he  admitted  the  facts   to  be  as  indicated  by 
the  interrogatories,  be  had  the   right  to  accompany  that 
admission  with  such  an  explanation  of  them  as  the  justice 
of  the  case  required.     lie  had  the  right  to  confess  and 
avoid.     His  admission  that  he  had  paid  the  accounts  to 
Johnson,  in  individual  debts  of  the  latter  to  him,  would, 
if  unexplained,  have  deprived  the  pay  meat  of  all  value  as 
a  defense  to  thia  suit;  and  he  had  the  right  to  aceompany 
his  admission  of  that  fact  with  the  statement  of  such  other 
facts  as  showed  that  the  payment  operated  a  legal  dis- 
charge of  the  demand. 


476 SUPREME  COURT 

Cry b  v.  White  £  Johnson. 

2.  The  defendant  introduced  evidence  tending  to  show 
that  the  plaintiff  White  had  sold   out  his  interest  in  the 
goods,  notes,  books  of  account,  &c,  of  the  firm,  to  his  part- 
ner, Johnson  ;  and  that,  after  this  sale,  the  defendant  had 
paid  the  accounts  sued  on  to  Johnson,  by  crediting  the 
same  on   individual   debts  due  from   Johnson  to  the  de- 
fendant.    It  appears  that,  after  the  introduction    of  this 
evidence,  the  plaintiff  White  was  offered  as  a  witness  under 
the  statute,  to  prove  the  correctness  of  the  demand  sued 
on,  the  requisite   notice  having  been  previously  givenJ 
On  his  examination,  he  was  allowed   to  state,  that  the 
co-partnership   of  White   &  Johnson    had  not  been  dis- 
solved; that  he  Lad  made  no  sale  to  Johnson  ;  that  John- 
son had  no  authority  to  settle  the  books  by  any  individual 
debt  of  his  due  the  defendant  ;  and  that  he  was  a  co-part- 
ner with  Johnson,  and  interested   in   the  goods  sold  in 
1853  and  in   LS54,  and  in  the  books.     It  was  not  the  de- 
sign of  section  2313  of  the  Code,  under  which  the  plain- 
tiff was  introduced,   to    make  the   parties  general   wit- 
nesses.— Waring  v.    Henry,  30   Ala.  724.     All   that   the 
plaintiff  is  competent  to  establish,  is  the  correctness  of 
the  demand.     It  is  true,  as  was  held  in  Jordan  v.  Owen, 
(27  Ala.  155,)  that  the  plaintiff  cannot  be  permitted,  under 
this  section,  so  to  shape   the  facts,  which  he  proposes  to 
pvove  by  hie  own  oath,  as  to  deprive  the  defendant  of  the 
right  to  prove  by  his  oath  that  the  demand  has  been  paid. 
In  cases  falling  within  this   section,   'the   correctness  of 
the  demand'  must  be  regarded  as  not  proved  by  the  plain- 
tiff's oath,  unless  he  swears  that  it  has  not  been   paid. 
Hence,  he  must  not  only  state  facts  which,  if  proved  by 
other  witnesses,  would    make  out  a  prima-facie  case  of 
indebtedness  of  the  defendant  to  him,  but  he  must  go 
further,  and  swear  to  the  fact  of  non-payment  of  the  in- 
debtedness.   But  where,  as  in  this  case,  the  defendant  sets 
up,  as  a  defense  to  the  action,  a  payment  not  made  to  the 
plaintift;  and  the  validity  of  such  payment  as  a  defense, 
depends  upon  an  alleged  previous  transfer  of  the  claim  to 
the  person   to  whom  the  payment  was  made,  it  is  not 
allowable  for  the  plaintiff  to  testify  in  rebuttal  of  theevi- 


OF  ALABAMA.  477 


Lawrence  v.  Ware. 


deuce  of  transfer  ottered  by  the  defendant.  If  the  plain- 
tiff was  permitted  to  contradict  the  evidence  offered  by 
the  defendant,  of  an  independent  fact  of  this  sort,  it 
would  be  difficult  to  fix  any  limit  to  his  right  to  testify- 
in  the  case.  It  is  obvious,  that  the  testimony  of  the 
plaintiff — that  the  partnership  was  not  dissolved,  that  he 
had  made  no  sale  to  Johnson,  and  that  the  latter  had  no 
authority  to  settle  the  books  by  any  individual  debt  of 
his  due  the  defendant — was  not  evidence  necessary  or 
proper  to  establish  the  correctness  of  the  demand,  in  the 
first  instance,  and  was  irrelevant,  except  so  far  as  it  went 
to  disprove  the  alleged  transfer  to  Johnson,  or  the  valid- 
ity of  the  defendant's  payment  to  him.  In  any  aspect,  it. 
was  strictly  rebutting  proof;  and  we  hold,  that  the  court 
erred  in  permitting  the  plaintiff  to  testify  to  the  facts 
above  mentioned. — vSee,  further,  West  v.  Brunn,  85  Ala. 
263;  Flash,  Ilartw'ell  &  Co.  v.  Ferri,  34  Ala.  180;  Ben- 
nett v.  Armistead,  8  Ala.  507 ;  Kirkman  v.  Eaton, 
35  Ala.  212. 
Judgment  reversed,  and  cause  remanded. 


'E  i 


LAWRENCE  vs.  WAKE. 

i  kCTIOM  OH   PKOKIMORY  NOTE,  BY  ASSIGNEE  AGAINST  VAKKR.1 

i  ofjudgmt  >,<  as  bar. — Where  a  promissory  note,  which 
ha<l  been  transferred  by  delivery,  was  pieced  by  the  transferree 
in  the  hands  of  an  agent,  with  instructions  ti  il   to  the 

maker  for  payment,  and,  if  payment  iras  refused,  to  put  in  thn 
hands  of  an  attorney,  f'>r  collection  by  suit  :  and,  payment  having 
tsed,  th.'  s  to  an  attorney,  «  ho,  not  be 

ing  informed  "t   (!.■■  name  of  the  r»'::l  owner,  brought  sull  on  it  in 
tin'  name  of  the  agenl  .  and  tided, 

.on  the  |  tint  tbe  .     I   meat 

in  thai    >  tion  on  the  note  by 

tli>-  owner,  who  was  not  shown  to  have  li.nl  notice  of  tin'  ;>■  n.lency 
of  that  action. 


478  SUPREME  COURT 


Lawrence  v.  Ware. 


AiTKAL  from  the  Circuit  Court  of  Shelby. 
Tried  before  the  IIou.  \V.\i.  S.  MuDD. 

Tins  action  was  brought  by  Noah  Lawrence,  against 
Horace  Ware  ;  was  founded  on  the  defendant's  promis- 
sory note  for  $87  87,  dated  25th  May,  1854,  and  payable 
on  the  1st  January,  1855,  to  Matthew  Lee  or  order;  and 
was  commenced  on  the  3d  August,  1858.  The  de- 
fendant pleaded  a  former  judgment  on  the  note,  in  his 
favor;  and  issue  was  joined  on  that  plea.  On  the  trial, 
as  the  bill  of  exc  states,  after  the  plaintiff  had  read 

in  evidence  the  note  on  which  the  suit  was  founded,  the 
defendant  offered  in  evidence  the  record  of  the  suit  on 
which  he  relied  as  a  bar.  That  suit  was  brought  in  the 
name  of  one  L.  Vandever  as  plaintiff,  and  against  the  de- 
fendant in  this  case;  was  founded  on  the  same  promise 
note  which  is  the  foundation  of  the*action  in  this  case; 
ami  judgment  was  rendered,  on  the  11th  March,  i 
on  the  verdict  of  a  jury,  in  favor  of  the  defendant;  but  the 
record  does  not  show  what  pleas  were  interposed.  "It  was 
admitted,  that  on  the  trial  of  that  suit,  under  the  plea  of 
set-off,  the  defendant  proved,  that  he  had  employed  Mat- 
thew Lee,  the  payee  of  said  note,  to  transport  a  large 
quantity  of  pig-iron  for  him,  in  flat-boats,  down  the  Coosa 
river  to  Wetumpkaj  that  said  iron  was  sunk  in  the  Coosa 
river,  in  consequence  of  s^l  Lee's  failure  to  perform  his 
duties  in  reference  to  the  transportation,  and  was  thereby 
wholly  lost  to  the  defendant,  and  that  the  value  of 
said  iron  was  greater  than  the  amount  of  the  said  note. 
It  was  admitted,  also,  that  the  only  issue  tried  in  that 
suit  was  the  validity  and  sufficiency  of  the  said  set-off, 
and  that  the  jury  found  their  verdict  for  the  defendant  on 
that  issue.  It  was  admitted,  als*,  that  Lawrence,  the 
plaintiff  in  the  present  suit,  held  said  note#by  transfer  from 
said  payee  by  delivery,  and  that  said  transfer  was  for  a  . 
valuable  and  sufficient  consideration.  It  was  proved  by 
said  Vandever,  on  the  trial  in  this  case,  that  said  plaintiff 
(Lawrence)  delivered  said  note  to  him,  and  requested  him 
to  call  on  Ware,  collect  the  money,  and,  if  paid,  send  the 


OF  ALABAMA.  479 


Lawrence  v.  Ware. 


money  to  him;  that  said  witness  called  on  defendant  for 
the  money, who  failed  and  refused  to  Jsay  the  same;  that 
he  then  informed  plaintiff,  who  resided  in  Calhoun  county, 
of  the  defendant's  failure  to  pay  the  note,  and  was  in- 
structed by  him  to  place  it  in  the  hands  of  an  attorney, 
for  collection  by  suit;  that,  being  unacquainted  with  any 
attorney  in  Shelby  county,  he  handed  said  note  to  one 
Moore,  to  be  delivered  by  him  to  ;m  attorney,  but  did  not 
tell  said  Moore  to  whom  said  note  belonged ;  and  that  he 
(witness)  had  no  interest  in  said  note,  and  had  no  know- 
ledge that  the  suit  had  been  brought  in  his  name  until 
after  the  same  hod  been  tried.  Il  was  admitted,  that  the 
suit  was  brought  by  the  attorney  in  the  name  of  said  Van* 
dever,  because  he  was  informed  that  it.  was  sent  by  him, 
and  the  name  of  no  other  owner  was  disclosed." 

On  the  facts  above,  stated,  the  plaintiff  proposed  to 
prove,  "that  the  alleged  set-off;  proved  by  the  n<  fendanl 
on  the  trial  of  the  former  suit,  was  unju>: .  untrue,  and 
improperly  allowed;  that  the  defendant  su>  aiued  in  fact 
no  loss  or  damage  ii  of  the  sinking  •  f  the 

iron  in  the  river;  that  the  nil  I.e. 

for  the  transportation  of  the  iron,  was  made  aft.  i   ll  ••  de- 
fendant had  notice  of  the  tranefer  of  said  note  b; 
Baki  plaintiff;  and  that  said  note  was  in  faei  gi\  a 

debt  due.  from  said  defendant  to  plaintiff,  (ex<  mall 

balance  due  from  said  defendant  to  Lee,)and  v  iven 

:   Lee  informed  defendant  that  he  v. 
:  the  note  to  plaintiff." 
dence,  and  charged  the  jury,  "that,  if  they  beli 
evidence,  tl  find  for  I        •      ndatrt."     The  plain- 

till  excepted  to  the  ruling  of  the  court  in  el  u 

evidenci  by  him,  and  to  the  charge  to  the  jury; 

and  he  no.v  error. 

S.  Leipkr,  for  appellant. 

M.m;  i  i  /. 

A.  .1.  WALKER,  ('.  J.— [June  7.  1-  d.J- 
principle  is,  that  judgments  aa  1  .  ling 


SUPREME  COURT 

Lawrence  v.  "Ware. 

on  parties  and  privies.  The  plaintiff  in  this  suit  was 
mother  a  party  nor  privy  to  the  former  suit  which  19 
pleaded  in  bar.  With  the  person  in  whose  name  the  for- 
mer suit  was  brought,  the  plaintiff  occupied  no  relation- 
ship, in  reference  to  the  property  in  the  note,  which  would 
constitute  privity. — 1  Greenleaf  on  Evidence,  §§  189,  ">23. 
The  only  relationship  which  existed  between  them,  was 
that  of  a  temporary  agency  on  the  part  of  the  plaintiff  in 
the  former  suit,  to  demand  payment  of  the  note,  and,  in 
default  of  payment,  to  deliver  it  to  an  attorney  for  collec- 
tion. 

It  was  decided  in  Mayer  v.  Faulkrod,  (4  Wash.  C.  C. 
503.)  that  where  the  suit  was  brought  in  the  name  of  an 
improper  plaint  ill,  and  a  recovery  had,  and  paymentmade, 
there  being  no  collusion,  the  payment  would- constitute 
a  defuse  to  an  action  by  the  true  owner  of  the  cause  of 
action.  But  that  decision  is  put  expressly  upon  the 
ground  oi'  a  payment  made  by  the  legal  and  compulsory 
sentence  of  a  competent  tribunal  ;  and  it  is  admitted  that, 
in  the  absence  of  such  payment,  the  former  judgment 
would  be  no  defense.  Besides,  the  correctness  of  that  de- 
cision is  doubted. — 2  Part  Cow.  &  Hill's  Notes  to  Phil. 
Ev.  (3d  ed.)  107.  • 

It  is  true  that  the  court  will  always  inquire  who  are 
the  real  parties,  in  determining  whether  a  former  judg- 
ment is  a  bar.  But  there  is  nothing  in  the  record  in  this 
case,  which  authorizes  the  inference  that  the  plaintiff  was 
the  real  party  in  the  former  suit.  The  other  suit  was,  as 
to  him,  res  titer  alios  acta.  He  had  no  right  to  control  the 
proceedings  in  the  case,  or  to  produce  or  cross-examine 
witnesses,  or  to  appeal ;  and  it  does  not  at  all  appear  that 
he  participated  in  conducting  it,-  or  even  knew  of  its 
existence. 

Reversed  and  remanded. 


OF  ALABAMA.  481 


Cleveland  v-  Pollard. 


CLEVELAND  vs.  POLLARD. 

[bill  in  EQUITY  TO  subject  separate  estate  of  siakfikd  woman  TO  pay- 
ment OF  DEBT.  I 

1.  Sufficiency  of  service. — Where  one  of  the  defendants  was  described 
in  the  original  bill  as  Charles  T.  Cleveland  ;  and  the  sheriff  re- 
turned the  subpoena  "executed  on  Charles  //.  Cleveland,  and 
Charles  T.  Cleveland  not  found  ";  and  the  bill  was  afterwards 
amended  by  substituting  //.  for  T.  as  the  initial  letter  of  the  mid- 
dle name, — held,  that  the  service  was  sufficient,  and  that  the  vari- 
ance was,  at  most,  an  immaterial  misdescription. 

between  trustee  and  cestui  que  trust. — To  subject  a  married 
woman '8  separate  estate,  created  by  deed  or  will,  to  the  payment  of 
a  debt  contracted  by  her  with  her  trustee,  or  with  a  partnership 
of  which  he  is  a  member,  it  is  not  enough  for  the  complainant  to 
aver  and  prove  that  "  the  articles  were  furnished  by  her  express 
desiiw  under  the  faith  and  credit  ofJier  separate  estate,  and  were 
suitable  and  proper  to  her  condition  in  life":  he  must  repel  the 
imputation  of  bad  faith,  which  the  law  casts  upon  him,  by  show- 
ing that  the  prices  charged  were  reasonable,  and  that  he  made  no 
profit  by  the  transaction. 

Appeal  from  the  Chancery  Court  of  Russell. 
Heard  before  the  Hon.  James  B.  Clark. 

The  bill  in  this  case  was  Hied  by  Charles  T.  Pollard, 
Samuel  (}.  Jones,  and  William  C.  Tonga,  as  partners  and 
joint  owners  of  the  "Chewacla  Lime  Works,"  against 
Mrs.  Elizabeth  E.  Clo\  land,  Charles  T.  Cleveland,  her 
husband,  ami  William  C.  Yongc,  her  trustee;  and  sought 
to  subjeel    Mr-.  Cleveland's  separate  .held  under 

the  will  of  her  .i  father,  t<>  the  payment  of  a  debt 

contracted  by  her  with  the  complainants.    It  all  sged,  that 
the  complainants  had  furnished  lumber,  lime.  &nd  other 
material.-,  ami  had  advanced  money,  towards  the 
struetion  of  a  dwelling-house  on  a  lot  belonging  to  Mrs. 
Cleveland;   that  "tl  furnished  to  her,   by  hei 

desire,  during  the  1856,  ami  1857,  vari- 


482  SUPREME  COURT 


Cleveland  v.  Pollard. 


ous  articles  suitable  and  proper  to  her  condition  in  life, 
and  advanced  various  sums  of  money  to  her,  and  for  her 
benefit,  in  the  same  way,  and  all  under  the  faith  and  credit 
of  her  said  separate  estate";  and  that  said  separate  estate 
consisted  of  two  slaves,  a  tract  of  land  containing  about 
eighty  acres,  and  a  four-acre  lot  on  which  her  dwelling- 
house  was  situated.  In  the  original  bill,  Mrs.  Cleveland's 
husband  was  described  as  Charles  T.  Cleveland;  but,  the 
sheriff  having  returned  the  subpoena  "executed  on  Charles 
IT.  Cleveland,  and  Charles  T.  Cleveland  not  found,"  the 
bill  was  afterwards  amended,  by  substituting  H.  for  7. 
as  the  initial  letter  of  his  middle  name. 

Decrees  pro  confesso  were  entered  against  all  the  de- 
fendants, in  default  of  their  appearance;  and  at  the  ensu- 
ing term,  the  cause  having  been  submitted  for  decree,  the 
chancellor  held  the  complainants  entitled  to  relict,  and 
ordered  a  reference  to  the  master,  to  ascertain  and  report 
the  amount  of  the  complainants'  debt,  the  value  of  Mrs. 
Cleveland's  separate  estate,  in  what  it  consisted,  and 
what  part  of  it  could  be  sold  with  least  detriment  to  her 
interests.  At  the  next  term,  after  the  master's  report 
had  been  made,  the  defendants  Cleveland  and  wife  sub- 
mitted an  application  to  set  aside  the  decree  pro  confesso 
against  them,  and  for  leave  to  file  an  answer;  and  their 
application  was  supported  by  several  affidavits.  The 
chancellor  overruled  the  application,  but  without  preju- 
dice to  a  renewal  of  the  application  by  Mrs.  Cleveland 
alone;  and  afterwards  overruled  her  application,  founded 
on  new  affidavits,  confirmed  the  master's  report,  and  or- 
dered a  sale  of  a  part  of  her  separate  estate,  unless  the 
complainants'  debt  was  paid  by  a  giver,  day. 

It  is  now  assigned  as  error — 1st,  that  the  bill  ought  to 
have  been  dismissed,  for  want  of  equity;  2d,  that  the  de- 
crees pro  confesso  ought  to  have  been  set  aside,  and  the 
defendants  been  allowed  to  file  auswers;  and,  3d,  that 
the  final  decree  is  erroneous. 

Chilton  &  Yancey,  and  Wm.  P.  Chilton,  Jr.,  for  ap- 
pellants. 


OF  ALABAMA.  483, 


Cleveland  v.  Pollard. 


Geo.  D.  Hoofer,  with  Goldtiiwaite,  Rice  &  Semple, 
contra. 

STONE,  J.— [June  6,  1861.]— The  point  made  on  the 
sufficieuc}^  of  the  service  on  Air.  Cleveland,  must,  we 
think,  be  overruled.  We  do  not  doubt  that  the  true  party 
was  served  with  subpoena  ;  and  hence  we  disregard  that 
portion  of  the  sheriff 's  return,  which  affirms  that  "Charles 
T.  Cleveland  [was]  not  found."  The  variance  is,  at  most, 
a  misdescription  of  the  initial  letter  of  Mr.  Cleveland's 
middle  name.  Under  the  principle  ruled  in  Edmundsou 
v.  The  State,  (17  Ala.  ISO,)  such  misdescription  is  imma- 
terial.— See  Lynes  v.  State,  5  Por.  236. 

The  view  we  take  of  a  question  after  considered,  ren- 
ders it  unnecessary  that  we  should  say  much  on  the  sub- 
ject of  setting  aside  the  decree  pro  confesso.  The  chan- 
cellor attained  the  conclusion,  that  the  defendants  had 
betrayed  great  want  of  diligence  ;  and  we  are  of  the  same 
opinion. 

We  have  not  been  referred  to  any  adjudged  case,  nor 
have  we  found  any,  which  is  precisely  like  the  present. 
This  is  not  the  case  of  a  sale  of  trust  property  by  a  trus- 
tee to  himself,  nor  of  a  purchase  of  the  trust  estate  by 
the  trustee  from  the  cestui  que  trust.  If  such  were  the 
facts  of  this  case,  the  law  applicable  to  it  is  well  defined. 
See  Thompson  v.  Lee,  31  Ala.  304-5,  and  authorities 
I ;  Hill  on  Trustees,  157-8  ;  8  !q.  Jur.  §§  321-2. 

The  bill  in  this  casi  ct,  charges  that  the  account, 

for  the  recovery  of  which  this  suit  is  brought,  is  for  arti- 

Bold  to   Mrs.  Cleveland  at  her  instance  and  reqi 
We  ti     t  th<  if   the  bill  charged  that  Mrs.  Cleve- 

land purcha*  mi  the  complainant-  by    ex- 

!  -  contract.  The  language  of  the  bill  is,  "Your  ora- 
tors also  jointly  furnisl  I  Mrs.  Elizabeth  E. 
Cleveland,  by    h                                  .  during  the 

.  and  18.r)7,  with  various  articles  suitable  and   pi 
to  her  condition  in   life,   and  advanced   various   sums  of 
money  to  her,  and  for  her  benefit,  in  the  same  way.-'   But 
immediately  in  connection  is  found  the  averment,  that  ail 


SUPREME  COURT __^ 

Cleveland  v.  Pollard. 

this  was  done  "under  the  faith  and  credit  of  her  separate 
estate."  The  plain  import  of  this  language- is,  that  the 
complainants,  of  whom  one  is  the  trustee  of  Mrs.  Cleve- 
land, intended  by  the  sale  to  create  a  charge  on  her  trust 
estate.  It  is  difficult,  if  not  impossible,  to  distinguish,  in 
principle,  this  transaction,  from  the  ordinary  case  of  a 
purchase  of  the  trust  estate  by  the  trustee.  "  A.  trustee 
is  never  permitted  to  partake  cfthe  bounty  of  the  party 
for  whom  he  acts,  except  under  circumstances  which 
would  make  the  same  valid,  if  it  were  a  case  of  guardian- 
ship. A  trustee  can  not  purchase  of  his  cestui  que  (rust, 
unless  under  like  circumstances;  or,  to  use  the  expressive 
language  of  an  eminent  judge,  a  trustee  may  purchase  of 
his  cestui  que  trust,  provided  there  is  a  distinct  and  clear 
contract,  ascertained  to  be  such,  after  a  jealous  and  scru- 
pulous examination  of  all  the  circumstances;  and  it  is 
clear  that  the  cestui  que  trust  intended  that  the  trustee 
should  buy;  and  there  is  no  fraud,  no  concealment,  and 
no  advantage  taken  by  the  trustee  .of  information  ac- 
quired by  him  as  trustee."— 1  Sto.  Eq.  Jur.  §§  321,  307; 
Fox  v.  Maekreth,  2  Bro.  C.  C.  400. 

In  the  case  of  Thompson  v.  Lee,  (31  Ala.  304,)  we 
stated,  as  the  result  of  the  authorities,  many  of  which  are 
there  cited,  that  contracts  of  parties,  between  whom  there 
exists  some  peculiar  confidential  or  fiduciary  relation, 
"  are  regarded,  primafacie,  as  constructively  fraudulent ;  and 
the  onus  is  cast  on  the  party  seeking  to  set  them  up,  of 
proving  the  bona  fides  of  the  transaction,  and  of  repelling 
the  imputation  of  bad  faith  and  oppression  which  the  law 
casts  on  him." — See,  also,  Greenfield's  estate,  14  Penn. 
State  Rep.  504,  et  seq.  ;  Taylor  v.  Taylor,  7  How.  U.  S. 
199;  Hill  on  Trustees,  157,  et  seq. ;  McKnight  v.  Wilson, 
2  Jones'  Eq.  491 ;  Puzey  v.  Seneir,  9  Wis.  370. 

While  we  concede,  that  such  a  transaction  as  this  may 
be  upheld,  if  there  be  no  bad  faith  or  oppression  on  the 
part  of  the  trustee;  still,  under  the  principles  above  de- 
clared, the  onus  rests  on  the  trustee,  who  seeks  to  enforce 
such  a  contract,  of  repelling  the  imputation  of  bad  faith 
and  oppression.      Applying  these  principles  to  this  case, 


OF  ALABAMA.  485. 


Owsley  v.  Montgomery  &  West  Point  Railroad  Company. 

the  bill  must  be  pronounced  defective.  True,  it  liters 
that  the  articles  were  supplied  to  Mrs.  Cleveland  by  her 
express  desire ;  but  it  is  not  stated  that  the  articles  thus 
furnished  were  reasonably  worth  the  sum  charged  ;  nor, 
when  bought,  for  the  use  of  Mrs.  Cleveland,  does  it  in  all 
cases  appear  that  no  profit  or  enhanced  price  was  charged 
against  her.  All  the  averments  of  the  bill  may  be  true, 
and  }-et  the  charges  for  the  various  items  be  unreasona- 
ble. The  onus  being  on  the  complainauts,  they  have  not 
brought  themselves  within  the  rule. 

The  decree  of  the  chancellor  is  reversed,  and  the  cause 
remanded. 


OWSLEY   vs.    MONTGOMERY    t    WEST    POINT 
RAILROAD   COMPANY. 

[action  FOK  FOK  malicioos  PROSECUTION,  AND  FALSE  imprisonment.] 

1.  W/,al  actions  lie  against  corporation. — An  action  of  trespass  for  false 
imprisonment  lies  against  a  corporation,  but  an  acti  i  case 
for  a  malicious  prosecution  does  not. 

2.  ]>iti  •  •  ■•mitts  in  case  and  in  trespass. — A  count  which 
that  the  defendants,    maliciously  and  without  probable  < 

out  a  warrant,  commonly  called  a  peace-warrant,  against  the  plain- 
tiff," is  in  case  for  a  malicious  prosecution  ;  an"  ml  which 
avers  that  the  defendants,  '  r<  ckli    -ly  ami  without  probable  i 
through  theii   agent  and  servant,  eausod  and  procured  a  ]>• 
warrant  to  1."  bu<  <1  out,"  Sec,  "on  which  .-aid  warrant  plaintiff* was 
arrested,  and  brought  before  the  said  justice  of  the  peace,  who,  on 
hearing  tie'  evidence   advanced    by  the   defendants,   d 
plaintiff  from  the  arrest  un  ler  said  warrant  ;"  buta  count  whioh 

ra   that    th^  d<  -]>',  and    with- 

out probabli    .hi-.    1!  ed   the  plaintiff  to  h 

an<l  imprison*  that  he  1  to  injure  and 

troy  the  lives  and  )  1  that  plaintiff 

imprison*  kc,  is  in  trespass  for 

false  imprisonment 


486  SUPREME  COURT 


Owsley  v.  Montgomery  k  West  Point  Railroad  Company. 

3.  Specification  of  grounds  of  demurrer. — A  misjoinder  of  counts  is  not 
available  on  demurrer,  unless  specially  assigned  as  a  ground  of  de- 
murrer, as  required  by  the  statute  (Code,  g  2253.) 

Appeal  from  the  Circuit  Court  of  Russell. 
Tried  before  the  Hon.  Nat.  Coojc. 

The  complaint  in  this  case  was  in  the  following  words: 
"George  W.  Owsley       -\  The  plaintiff  claims  of  the 
vs.  [  defendants  the  sum  of  two 

Montgomery  &  "West  Point  |  thousand  dollars,  as  dam- 
Railroad  Company.  J  ages  for  maliciously  and 
without  probable  cause  suing  out  a  warrant,  commonly 
called  a  peace-warrant,  against  the  plaintiff,  on  the  21st 
January,  A.  D.  1857.  Also,  the  further  sum  of  two  thou- 
sand dollars,  as  damages  for  recklessly  and  without  proba- 
ble cause,  through  their  agent  and  servant,  one  1).  II. 
Cram,  causing  and  procuring  a  peace-warrant  to  be  sued 
out  before  one  Henry  M.  Crowder,  a  justice  of  the  peace 
for  said  county  of  Russell,  on  the  21st  January,  A.  D, 
1857;  on  which  warrant  the  said  plaintiff*  was  arrested, 
and  brought  before  the  said  justice  of  the  peace, . who,  on 
hearing  the  proof  advanced  by  the  defendants,  discharged 
the  plaintiff"  from  the  arrest  under  said  warrant  on  the 
31st  January,  A.  D.  1857.  The  plaintiff  claims  of  the 
defendants  the  further  sum  of  two  thousand  dollars,  as 
damages  for  recklessly,  maliciously,  and  without  proba- 
ble cause  therefor,  causing  the  plaintiff  to  be  arrested  and 
imprisoned,  on  a  charge  that  he,  the  said  plaintiff",  had 
threatened  to  injure  and  destroy  the  lives  and  property  of 
the  defendants;  and  plaintiff  was  imprisoned  by  defend- 
ants ten  days,  to-wit,  from  the  21st  January,  A.  D.  1857, 
to  the  olst  day  of  said  month." 

The  defendant  demurred  to  the  entire  complaint,  and 
to  each  count  thereof  separately ;  and  assigned  the  fol- 
lowing causes  of  demurrer :  To  the  entire  complaint — 
"1st,  because  the  defendant  could  not  swear  out  a  peace- 
warrant,  or  act  maliciously;"  and,  "2d,  because  the  com- 
plaint shows  no  cause  of  action  against  the  defendant." 
To  the  first  count — 1st,  "because  the  defendant,  being  an 


OF  ALABAMA.  48T 


Owsley  v.  Montgomery  »t  West  Point  Railroad  Company. 


artificial  person,  if  any  at  all,  could  not  act  maliciously, 
or  swear  out  a  peace-warrant  against  any  person;"  2d, 
"because  the  said  count  does  not  show  any  cause  of  ac- 
tion, nor  does  it  allege  that  it  was  sued  out  before  any 
officer  authorized  to  issue  it,  or  that  any  process  issued;" 
and,  3d,  "because  itjjoes  not  allege  that  the  plaintiff  has 
been  discharged,  or  that,  said  proceedings  against  him 
hare  been  terminated."  To  the  second  count — 1st,  "be- 
cause the  defendant  is  not  responsible  for  the  malicious 
act  of  its  agent;"  and,  2d,  "because  the  said  count  does 
not  show  any  cause  of  action,  or  that  the  proper  and  ne- 
cessary affidavit  or  complaint  was  made,  upon  which  the 
justice  could  issue  a  peace-warrant."  To  the  third  count 
the  same  causes  of  demurrer  were  assigned  as  to  the  first 
and  second  counts. 

The  court  sustained  the  demurrer,  and  its  judgment 
thereon  is  now  assigned  as  error. 

Chilton  k  Yancey,  for  appellant. 
Goldthwaite,  Rice  &  Semple,  contra. 

B.  W.  WALKER,.  J.— [June  4,  1861.]— It  was  sup- 
posed at  one  time  that  an  action  for  a  tort  would  not  lie 
against  a  corporation.  But  this  idea  has  been  lomg  since 
exploded,  and  the  tendency  of  the  law  in  our  day  is  to 
extend  the  application  of  all  legal  remedies  to  corpora- 
tions, and  to  assimilate  them,  as  far  as  possible,  in  their 
legal  duties  and  responsibilities,  to  individuals.  Accord- 
ingly, the  modern  authorities  have  established  the  doc- 
trine, that  trover,  trespass  quart  clausum,  and  trespass  for 
an  assault  and  battery,  will  lie  against  a  Corporation. — 
Yarborough  v.  Bank,  16  Bast,  6;  Bloodgood  v.  Mokawk 
&  Hudson  River  Railroad  Co.,  18  Wend.  9;  Mannd  v. 
Monmouthshire  ('anal  Co.,  4  Mann.  &  Gr.  4"<2 ;  Kastern 
Counties  Co.  v.  Broom,  2  Eng.  1,.  &  Eq.  40G;  Moore  v. 
Jfiitchburgh  Corp.,  4  Gray,  466;  see,  als<>,  Fir&l  Baptist 
Church  v.  Schenectady  Co.,  o  Barbour,  7'J;  Mel>.>ugalv. 
Bellamy,  18  Geo.  HI ;  Commonwealths  Proprietors N. 
B.  I*. ridge,  2  Gray,  3 to  ;  12  Barb.  196  ;  Smoot  v.  Mayor, 


488  SUPREME  COURT 


Owsley  v.  Montgomery  &  West  Point  Railroad  Company, 


24  Ala.  112.     And  upon  this  same  reasoning,  a  corpora* 
tion  may  be  sued  in  trespass  for  false  imprisonment. 

In  like  manner,  when  the  action  of  a  corporation  be- 
comes injurious  to  the  public  at  large,   the  public  may 
have  its  remedy  by  indictment.     But  it  seems  to  be  the 
law,  that,  inasmuch  as  a  malicious  motive  and  criminal 
intent  cannot  be  attributed  to  a  corporation,  in  its  corpo- 
rate capacity,  it  is  not   indictable  for  those  crimes,  of 
which  malice,  or  some  specific  criminal  intent,  is  an  essen* 
tial  ingredient.     Thus,  in  Reginav.  Great  Northern  Co., 
(9  Ad.  &'  Ell.  N.'  S.    315,)  Lord  Denman  used  this  lan- 
guage: "Some  dicta  occur  in  old  cases— 'a  corporation 
cannot  be  guilty  of  treason  or  felony.'    It  might  beadded, 
*  of  perjury,  or  offenses  against  the  person.'     The  court  of 
common  pleas  lately   held,  that  a  corporation  might  be 
sued  in  trespass,  (Mauud  v.  Monmouthshire   Canal  Co., 
4  M.  &  Gr.  452  ;)  but  nobody  has  sought  to  fix  them  with 
acts  of  immorality.     These  plainly  derive  their  character 
from  the  corrupted  mind  of  the  person  committing  them, 
and  are  violations  of  the  social  duties  that  belong  to  men 
and  subjects.     A  corporation,  which,  as  such,  has  no  such 
duties,  cannot  be  guilty  in  these  cases;   but  they  may 
be  guilty  as  a  body   corporate,  of  commanding  acts  to 
be  done  to   the  nuisance  of  the  community   at  large." 
So,  in    Commonwealth  v.   Proprietors  of  New  Bedford 
Bridge,  (2  Gray,  815,)  it  was  said  :  "Corporations  can- 
not be  indicted  for  offenses  which  derive  their  criminality 
from  evil  intention,  or    which  consist  in   a  violation  of 
those  social  duties  which  belong  to  men  and  subjects."— 
Sec,  also,  1  Leading  Cr.  Cases,  p.'  141. 

The  distinction  seems  to  be  between  acts  injurious  in 
their  effects,  and  for  which  the  actor  is  liable,  without 
regard  to  the  motive  which  prompted  them,  and  con- 
duct the  character  of  which  depends  upon  the  motive, 
and  which,  apart  from  such  motive,  cannot  be  made 
the  ground  of  a  legal  responsibility.  If  this  distinction 
is  well  taken,  it  would  follow,  that  since  a  corporation, 
as  such,  is  incapable  of  malice,  it  is  not  liable  to  be  sued 
for  a  malicious  prosecution. — See  Childs  v.  Bank,  17  Mis* 


OF  ALABAMA.  489 


Boadurant  v-  Sibley'a  Iloirs. 


souri,  213;  Stevens  v.  Midland  Counties  Co.,  26  Ettg.  L. 
ftEq.  410;  McClellan  v.  Cumberland  Bank,  24  Maine, 
566;  State  v.  Great  Works  M.  Co.,  20  Maine,  41.  And 
such  appears  to  us  to  be  the  better  opinion,  although  we 
are  aware  that  there  are  authorities  which  seem  to  sustain 
the  idea,  that  an  action  for  a  malicious  prosecution  may 
be  maintained  against  a  corporation. — See  GoodenftV  v. 
East  Haddam  Bank,  22  Conn.  530 ;  P.  W.  &  P».  R.  R.  Co. 
v.  Quigley,  21  How.  (IT.  S.);  Natioual  Exchange  Co.  v. 
Drew,  32  Eng.  L.  &  Eq.  1. 

[2-3.]  It  results  from  what,  we  have  said,  that  the  de- 
murrers to  the  1st  and  2d  counts  were  properly  sustained. 
But  the  3d  count  is  not  a  count  in  case  for  malicious 
prosecution,  but  a  count  in  trespass  for  false  imprison- 
ment,,  (Shcppard  v.  Furniss,  19  Ala.  760;  Ragsdale  v. 
Bowles,  16  Ala.  62;  Code,  p.  554,)  which,  as  we  have  seen, 
will  lie  against  a  corporation.  No  sufficient  objection  to 
this  count  is  stated  in  the  demurrer  to  it;  nor  was  the 
misjoinder  <>f  counts  assigned  as  one  of  the  grounds  of 
the  demurrer  to  the  entire  complaint.  The  demurrer  to 
the  3d  count,  and  the  demurrer  to  the  entire  complaint, 
should,  therefore,  have  been  overruled. 

Judgment  reversed,  and  cause  remanded. 


BONDURANT  vs.  SIBLEY'S  HEIRS. 

[BILL   IN    Kv'IITY    HV   .11   DGXEITT   DBSfM  fTlR  KEDEJIin  MM.] 

1.  Whn  arc  parties  defendant- — A    person    Against    whom    proa 
prayed,  and   who  the    1'ill    prnvs   may    be   roqufctd    to   answer,  is 
thereby   made  a   [art-.  ml.   notwithstanding  tli"  want  of 
appropriate  allocations  showing  his  interest  in  the  litigation. 

2.  Amended  hill  irer  of  irregularity. — An 
amended  bill,  or  matter  of  amendment  brought  forward  in  a  bill 
of  revivor,  will  bo  stricken  out  on  motion,  if  filed  without  leare 

32 


400 SUPREME  COURT 

Bondurant  v.  Sibley's  Heirs. 

previously  obtained  ;  but,  if  no  such  motion  is  made,  and  answers 
are  afterwards  filed,  treating  the  amendment  as  properly  made, 
and  it  is  recognized  and  acquiesced  in,  both  by  the  parties  and  by 
the  chancellor,  the  appellate  court  will  consider  the  irregularity  as 
waived, 

3.  Appointment  of  guardian  ad  I i ton  for  infant  defendant. — The  ap- 
pointment of  a  guardian  ad  litem  for  an  infant,  who  is  not  at  the 
time  a  party  to  the  suit,  is  a  nullity  ;  but,  after  the  infant  has  been 
made  a^iarty,  the  appointment  of  a  guardian  ad  litem  for  him,  even 
if  made  without  any  previous  service  of  process,  and  otherwise  ir- 
regular, is  voidable  merely,  and  not  absolutely  void;  yet  such  irreg- 
ular appointment,  although  it  will  work  a  reversal  on  error  of  a  de- 
cree against  the  infant,  and  may  be  vacated  by  the  chancellor  on 
motion,  is  vulid  until  reversedor  set  aside;  and  the  subsequent  ap- 
pointment of  another  guardian,  while  the  former  is  unrevoked,  is 
void. 

4.  Service  of  process  on  infant. — Personal- service  of  process  on  an  in- 
fant, who  is  under  fourteen  years  of  age,  is  irregular. 

5.  Dismissal  of  bill  for  want  of  prosecution. — Where  the  complainant 
refuses,  after  his  bill  has  been  pending  for  several  years,  to  pursue 
the  course  suggested  by  the  chancellor,  and  which  is  the  only 
propi  r  course,  to  bring  in  a  party,  who,  though  made  a  defendant; 
has  not  been  brought  before  the  court,  the  bill  may  bo  dismissed, 
on  motion,  for  want  of  prosecution  ;  and  the  complainant  cannot  ex- 
cuse his  negligence  in  failing  to  proceed  against  the  absent  defend- 
ant, on  the  ground  that  he  was  not  a  necessary  ftarty  to  the  bill. 
Where  the  complainants  are  infants,  suing  by  their  next  fiiendt 
the  more  usual,  and,  ordinarily,  the  proper  practice,  is  to  remove 
the  next  friend;  vet,  if  the  chancellor,  in  the  exercise  of  his  dis- 
cretion, oismisses  the  bill,  the  appellate  court  will  presume  that 
he  did  so  because  the  interests  of  the  infants  did  not  require  a  fur- 
ther prosecution  of  the  suit. 

f).  Who  are  necessary  parlies  to  bill  for  redemption. — The  heirs-at-law  of 
the  deceased  purchaser  of  lands  sold  under  execution,  he  having 
died  intestate,  are  necessary  parties  to  a  bill  for  redemption  fded 
by  the  judgment  debtor. 

Appeal  from  the  Chancery  Court  of  Perry. 
Heard  before  the  lion.  James  B.  Clark. 

The  original  bill  in  this  case  was  filed,  on  the  20th 
March,  1848,  by  Joseph  II.  Bondurant,  against  the  per- 
sonal representative  and  heirs-at-law  of  Charles  Sibley, 
deceased;  and  sought  to  redeem  certain  lands,  which  had 
been  sold  under  execution  against  said  Bondurant,  and 


OF  ALABAMA.  4P1 


Bondurant  v.  Sibley's  Heirs. 


which  were  purchased  at  the  sale  by  said  Sibley.  Mary 
Perkins,  the  wife  of  A.  N.  Perkins,  was  alleged  to  be  one 
of  the  children  and  heirs-at-law  of  said  Sibley;  and  the^ 
bill  prayed  that  she  and  her  husband  might  be  made  de- 
fendants, that  subpa-nas  mfght  issue  to  them,  and  that 
they  might  be  required  to  answer.  On  the  22d  May, 
1848,  after  the  administrator  had  answered  the  hill,  and 
after  said  A.  N".  Perkins  had  also  filed  an  answer,  in  which 
he  alleged  that  his  wife,  Mary  Perkins,  died  on  or  about 
the  20th  February,  1348,  the  register  granted  leave  to  the 
complainant  to  amend  his  bill,  by  inserting  at  the  proper 

place  the  following  words :    "That  on  the  day   of 

February,  1848,  the  said  Mary  Perkins  died,  leaving  au 
infant,  without  a  name,  about  four  months  old,  surviving." 
On  the  21st  June,  1848,  on  motion  of  the  complainant, 
the  chancellor  made  an  order,  appointing  the  master  "to 
act  as  the  guardian  ad  litem  for  the  infant  defendant  men- 
tioned in  the  amended  bill."  At  the  June  term,  1850,  the 
complainant's  death  was  suggested,  and' leave  was  granted 
to  revivethe  suit  i  n  the  names  of  his  heirs-at-law  ;  and  abill 
of  revivor  was  accordingly  tiled,  on  the  14th  February, 
1851,  in  the  names  of  his  children  as  heirs-at-law,  all  of 
them  being  infants,  and  suing  by  their  next  friend.  The 
bill  of  revivor  recited  the  leave  to  amend  the  original  bill, 
and  alleged,  "that  the  said  bill  was  accordingly  amended 
as  therein  shown  ;  that  by  the  said  amendment  of  said  bill 

it  was  shown  that   Mary  Perkins  died  on  the day  of 

February,  1848,  leaving  an  infant,  only  four  months  old, 
surviving  her,  and  that  said  infant  is  named  Charles  S. 
Perkins."  The  bill  of  revivor  stated,  also,  that  no  guar- 
dian ad  litem  had  been  appointed  for  said  infant,  although 
he  was  made  a  party  to  the  bill  by  the  amendment; 
claimed  tin-  right  to  revive  the  suit  against  the  defendants, 
naming  Charles  S.  Perkins  as  one  of  them  ;  and  prayed 
that  he  might  be  required  to  answer  both  the  original  bill 
and  the  bill  of  revivor,  and  that  subpcBoaa  might  issue  to 
him  and  the  other  defendants.  But,  notwithstanding  the 
leave  to  amend  the  original  bill,  and  the  recitals  of  the 
bill  of  revivorthat  the  bill  had  beeu  accordingly  amended, 


SUPREME  COUKT 

Bond n rant  v    cil>ley  s  Ifeir.y. 


the  amendment  wa3  pot  in  fact  made,  either  by  interline- 
ation, or  on  a  separate  sheet  of  paper. 

A  subpoena  was  issued  on  the  bill  of  revivor,  directed 
to  Charles  S.  Perkins  with  the  other  defendants,  and  vraa 
returned  by  the  sheriff,  on  the  20th  March,  1851,  "exe- 
cuted;" and  answers  were  afterwards  filed  by  the  several 
adult  defendants.     At  the  June  term,  1851,  on  motion  of 
complainant?'  solicitor,  the  chancellor  appointed  A.  JfT. 
Perkins  as  the  guardian  ad  litem  of  Charles  S.  Perkins; 
the  order  reciting  that  the  infant  "is   under  the  age   of 
fourteen  years,  and'that  service  as  to  him  has  been  per- 
fected by  the  service  of  subpoena  on  him;"  and  an  answer 
was  filed  for  the  infant,  by  said  A.  N.  Perkins,. on  the  next 
clay.     At  the  November  term,  1852,  the  cause  was  argued 
before  the  chancellor,  on  the  demurrers  incorporated  in 
the  answers  of  the  several  defendants;  and,  in  his  opinion 
overruling  the  demurrers,  the  chancellor  noticed  the  fact 
that  the  original  bill  did  not  seem  to  .have  been  amended, 
in  •accordance  with  the  leave  granted  for  that  purpose,  and 
suggested  that  it  might,  be  "well  to  consider  whether  the 
hill  has  been  ever  so  amended  as  to  bring  in  the  infant  de- 
fendant."    At  the  November  term,  1855,  the  cause  was 
submitted  to  the  chancellor,  on  pleadings  and  proof,  for 
final  decree;  and  it  was  insisted  before  him,  by  the  coun- 
sel for   defendants,  that  Charles  S.  Perkins  had  not  been 
brought  before  the  court.     The  chancellor  overruled  that 
point,  and  held  that  the  infant  was  property  represented 
by  his  father,  A.  N.  Perkins;  but  he  dismissed  the  bill, 
on  the  ground  that  it  did  not  contain  a  sufficient  allega- 
tion of  the  delivery  of  possession  without  suit.     At  the 
January  term,  1857,  on  appeal  to  this  court,  the  chancel- 
lor's decree  was   reversed,  and  the  cause  remanded;  this 
court  declining  to  decide  on  the  merits  of  the  case. — See 
29  Ala.  570. 

On  the  16th  June,  1857,  a  subpoena  was  issued  to  Charles 

S.  Perkins,  which  was  returned  by  the  sheriff,  "executed 

by  handing  copy  of  the  within  to  A.   N.  Perkins,  his 

ather,  for  the  said  Charles  S.  Perkins."     At  rules  before 

he  register,  on  the  16th  .November,  1857,  on  motion  of 


OF  ALABAMA, 493 

Bondiirant  v.  Sibley's  Heirs. 


the  complainants,  J.  II.  Harrieon  was  appointed  guardian 
ad  litem  for  said   Charles  S.  Perkins:  and,  on  the  - 
day,  said  Harrison  filed  his  consent  in  writing  to  net  as 
sue!)  guardian,  and  (iled  an  answer  for  1  he  infant.     At  the 

nber  term,  1857,  the  complainants  asked  have  to 
amend  the  original  bill,  in  accordant©  with  the  amend- 
ment allowed   by  the  register,  as  above  stated,  in  May, 

;  and  also  to  amend  that  amendment,  by  strikingorft 
the  words  '-without  a  name,"  and  inserting  in  lieu  thereof 
the  words  "named  Charles  S.  Perkins;"  and,  at  the  same 
tim  s,  the  adult  defendants  moved  to  dismiss  the  bill  for 
want  of  prosecution.  The  chancellor  overruled  the  de- 
motion, and  granted  the  complainants'  motion; 
and  the  original  bill  was  accordingly  amended  by  infer- 
lineation.  At  the  same  time,  th^  chancellor  made  an  or- 
der, ,  .  vacating  and  setting  aside  the  last  sub- 

a  which  had  been  issued  to  Charles  8.  Perkins, 
together  with  the  appointment  of  Harrison  as  his  guar- 
dian ad  litem,  and  the  answer  filed  by  said  Harrison  ftS 
such  guardian.     At  the  December  term,  18'  ause 

was  again  submitted  to  the  chancellor,  on  pi  and 

proof,  for  final  decree;  and  the  defendants  again 
that  I  S.  Perkins  was  not  pro.pcrly  before  the  court, 

and  moved  to  dismiss  the   lull    for  want    of  :ion. 

The  chancellor  refused  to  dismiss  the  bill,  but  held  that 
the  infant  had  not  been  brought  before  the  court  in  a 
proper  manner,  inasmuch  as  the  Be r Vice  of  the  first  snb- 

i  <:i   him,  and  the  appointment  of  A.  N.  Peiki 
his  guardian  adliiem,  were  both  irregular  and  e.  i 
and  he.  therefore  placed  I  e  back  on  tin'  docket,  in 

order  that  proper  proceedin,  ht  be   had  to   vacate 

that  appointment,  and   to  b<  I  ment  ov- 

poD  it.     At  the  dune  term,  .  motion 

(d  th.'  compl  .  iitor,  th-  ■  the 

'.litmeni  of  A.  X.  Perkins  ;is  the  guardian  c 
Charles  8.  Perkins,   and  all    th.'  had 

paplaiuanta'  next 
friend;  hut,  on  the  next  day,  on  motion  oi  the  ^ame  soli- 
citor, th'  o,  and  the  form*  i 


494  SUPREME  COURT     ____^ 

Bondurant  v.  Sibfoy's  Heirs. 

_ . ______________ 

ted  by  it  were  reinstated;  the  last  order  of  the  court  reci- 
ting, that  said  solicitor  moved  to  set  aside  the  order  of  the 
previous  day  "because  the  complainants'  next  friend  was 
dissatisfied  with  him  for  having  made  the  motion  to  vacate 
said  appointment,"  &c.  At  the  same  time,  the  complain- 
ants' solicitor  moved  to  set  aside  the  order  vacating  the 
appointment  of  Harrison  as  the  guardian  ad  likm  of 
Charles  S.  Perkins,  and  1  lie  adult  defendants  again  moved 
to  dismiss  the  bill  for  want  of  prosecution.  The  chancel- 
lor refused  to.grantthe  order  asked  by  the  complainants, 
and  dismissed  the  bill,  on  defendants'  motion,  for  want  of 
prosecution. 

The  decretal  order  made  at  the  December  term,  1857, 
setting  aside  the  second  subpoena  to  Charles  S.  Perkins, 
the  appointment  of  Harrison  as  his  guardian  ad  Idem,  and 
the  answer  filed  by  said  Harrison  ;  the  decretal  order  set- 
ting aside  the  appointment  of  A.  N.  Perkins  as  guardian 
ad  Idem  ;  the  refusal  to  set  aside  the  order  vacating  the 
appointment  of  Harrison,  and  the  final  decree  dismissing 
the  bill,  are  now  aligned  as  error. 

Goldthwaite,  Rice  &  Se.mple,  for  the  appellants. 
1.  Charles  S.  Perkins  was  properly  brought  befo-e  the 
court,  and  Harrison  was  regularly  appointed  his  guardian 
ad  litem;  and  the  chancellor  had  no  power,  at  a  subsequent 
term,  to  vacate  his  appointment,  and  suppress  the  answer 
filed  by  him. — Anslev  v.  ttobinson,  16  Ala.  793;  iStatc 
Bank  v.  Johnson,  9  Ala.  307  ;  0  Paige,  371;  2  A.  K.  Mar. 
342,  168;  14  Peters,  156;  1  Dan.  Ch.  Pr.  218. 

2.  As  the  complainants  were  infants,  they  ought  not  to 
be  held  responsible  for  the  negligence  or  misconduct  of 
their  next  friend.  Instead  of  dismissing  the  bill,  the 
chancellor  ought  to  have  removed  the  next  friend,  and 
appointed  another  person  in  his  stead;  or,  at  least,  to 
have  referred  it  to  the  register  to  inquire  what  course  the 
interests  of  the  infants  required. —  Smallwood  v.  Putter, 
3Eng.  L.  k  Eq.  210;  Naklor  v.  Hawkins,  2  Myl.  &  K. 
243." 

3/  Sibley  's  heirs  were  not  necessary  parties  to  the  suit, 


OF  ALABAMA.  495 


Bondnrant  v.  Sibley's  Heirs. 


their  interests  being  fully  represented  by  the  administra- 
tor.— Castleberry  v.  Pierce,  5  Stew.  &  P.  150;  5  Dana, 
285. 

4.  Even  if  the  heirs  were  necessary  parties,  and  there 
was  a  failure  to  perfect  service  on  one  of  them,  whose  in- 
terest is  defined  and  separable,  the  complainants  were 
entitled  to  a  decree  against  the  other  defendants,  to  the 
extent  of  their  interest  in  the  lands. 

I.  W.  Garrott,  contra. — The  complaiuants'  bill  was 
pending  in  the  court  for  twelve  years,  and  yet  Charles  8. 
Perkins  was  never  brought  before  the  court.  This  omis- 
sion was  repeatedly  pointed  out  by  the  defendants,  and 
made  the  ground  of  several  motions  to  dismiss;  and 
the  complainants'  attention  was  directed  to  it  by  sugges- 
tions from  the  chancellor  at  different  times.  Yet,  instead 
of  taking  the  proper  steps  to  remedy  this  defect,  the  com- 
plainants' next  friend  obstinately  refused  to  act  on  the 
Suggestion  of  the  chancellor.  The  28th  rule  of  chancery 
practice,  requiring  that  a  bill  shall  be  dismissed,  if  the 
complainant  does  not  take  proper  steps  to  bring  in  the 
defendant  before  the  second  term  after  the  tiling  of  the 
bill,  is  peremptory  ;  but,  if  it  be  only  matter  of  discretion 
with  the  chancellor,  his  decision  in  not  only  amply  justi- 
fied by  the  facts,  but  cannot  be  revised  by  this  court  on 
appeal. 

A.  J.  WALKER,  C.  .1.— [July  11,  18G1.]— [1-2.J  The 
infant  defendant  mentioned  in^the  amended  bill,  was  not 
a  party  to  the  suit  at  the  time  the  master  was  appointed 
I  as  guardian  ad  litem  for  him.  The  bill  of  revivor, 
however,  made  Charles  8.  Perkins  a  party  defendant. 
The  want  of  appropriate  allegations,  showing  his  inti 
in  the  litigation.  m  him  from  becoming  a 

party  by  virtue  of  the  prayer  that  he  should  answer,  and 
the  prayer  for  pi  .nn-t  him. — Walker  v.  Bank  of 

Mobile,  6  Ala.  452;   !  Bank   of  Darien,   2   Is 

Tims  far,  the  bill  of  revivor  was  a   bill   of  amend- 
ment; and  the  amendment  thus  brought  forward,  having 


496  SUPREME  COURT 


Bondurant  v.  Siblfty'a  Heirs. 


been  made  without  leave  previously  obtained,  would  have 
been  strickefl  out  on  motion. — 1  Dan.  Ch.  Pr.  468.  But 
no  such  motion  was  made.  Answers  were  filed  by  the 
defendants,  treating  the  amendment  as  properly  made; 
and  there  was  afterwards  a  long  acquiescence  in,  and  re- 
cognition of  the  amendment,  both  by  the  parties,  and  by 
the  court.  Under  these  circumstance's,  we  do  not  think 
that  the  amending  feature  of  the  bill  of  revivor,  as  it  is 
denominated,  ought  to  be  regarded  as  not  belonging  to 
the  record,  notwithstanding  it  may  not  have  .been  made 
in  pursuance  of  a  previous  order. — Farmers'  Loan  £  Trust 
Co.  v.  lieid,  3  Edw.  Ch.  414. 

[3-4.]  As  the  infant  defendant  mentioned  in  the 
amended  bill  was  not  a  party  to  the  suit  at  the  time  the 
master  was  appointed  to  act  as  guardian  ad  litem  for  him, 
that  appointment  was  a-  nullity;  and  it  seems  to  have 
been  so  treated  by  the  chancellor.  But,  as  Charles  8. 
Perkins  was  made  a  party  by  the  bill  of  revivor,  the  chan- 
cellor then  had  jurisdiction  to  appoint  a  guardian  ad  litem 
for  bim  ;  and  the  appointment,  even  if  made  without  any 
previous  service,  and  otherwise  irregular,  would  not  be 
void,  but  voidable  merely. — Preston  v.  Dunn,  25  Ala,  507. 
The  appointment  of  A.  N.  Perkins,  at  the  June  term, 
1851,  as  the  guardian  ad  litem  of  Charles  S.  Perkins,  no 
matter  how  irregular  it  may  have  been,  was  not  void; 
because  the  infant  was  a  parly  to  the  suit  when  it  was 
made.  It  was,  however,  irregular;  and  this  court  would, 
on  account  of  the  irregularity,  have  reversed  a  decree 
against  the  infant.  The  irregularity  consisted  alone  in 
the  fact,  which  is  shown  both  by  the  return  on  the  sub- 
i  and  by  the  order  making  the  appointment,  that  the 
subpoena  was  served  on  the  infant  personally,  who  was  at 
that  time  only  three  or  four  years  of  age. — 20th  Jiule  of 
Chancery  Practice,  24  Ala.  V;  Clark  v.  Gilmer,  28  Ala. 
265;  Sanders  v.  Codley,  23  Ala.  473:  llodges  v.  Wise, 
I  6  Ala.  606  ;  Walker  v.  Bank  of  Mobile,  6  Ala.  452.  The 
chancellor  had,  unquestionably,  the  power  to  vacate  this 
irregular  interlocutory  order;  and  it  would  have  been  his 
plain  duty  to  Jo  so,  on  the  motion  of  the  complainants. — 


OF  ALABAMA. 497 

Bondurant  v.  Sibley's  HeirS. 


3  Dan.  Ch.  Pr.  1616,  1807;  Walker  v.  Bank  of  Mobile, 
6  Ala.  452. 

The  register's  appointment  of  Harrison,  as  the  guar- 
dian ad  litem  of  Charles  S.  Perkins,  wa9  clearly  imp  roper  | 
because  there  was  then  an  existing  appointment,  which 
was  valid  until  set  aside.  Harrison's  appointment  was 
strictly  analogous  to  the  appointment  of  a  second  admin- 
istrator without  revoking  the  appointment  of  the  first. 
As  the  second  appointment  of  an  administrator  would  be 
void,  so  also  is  ihe  second  appointment  of  a  guardian  ad 
litem  in  this  case.  If  it  were  not  so,  there  would  be  two 
separate  and  distinct  guardianships  at  the  same  time.  As 
Harrison's  appointment  was  void,  the  order  of  the  chan- 
cellor setting  it  aside  was  correct. 

[5-6.]  The  order  netting  aside  the  appointment  of  A. 
N.  Perkins,  as  the  guardiau  ad  litem  of  Charles  S.  Perkins? 
was  vacated  on  motion  of  the  complainants'  solicitor;  ;md 
the  solicitor  seems  from  the  record  to  have  made  the  mo- 
tion, because  his  client  was  dissatisfied  with  him  for  ob- 
taining the  vacation  of  the  appointment.  The  appellants 
cannot  complain  of  the  action  of  the   chancellor  in  thus 

ing  aside  the  order  vacating  the  appointment  of  Per- 
kins, although  it  may  have  been  improper,  because  it  was 
made  at  their  instance.  It  would  have  been  improper  for 
the  chancellor  to  grant  the  complainants'  motion  | 
aside  the  order  vacating  the  appointment  of  Harrison. 
The  order  setting  aside  the  appointment  of  Perkins, 
which  thecomplainants  would  not  permit  to  remain  when 
it  had  been   made,  and  would  not  ask  Wi.cn  it  was 

ted  by  the  chancellor,  was  the  only  possible  means  by 
which  the  infant  could  be  represented  in  court  it 
lar  manner.     The  complainants  re!  t    only  ; 

it  was  necessary  to  prepare  the  cause  fora  hearing  . 
to  permit  I :  iaill  when  it  had 

made.     There  was,  thei  tsal  on   their  potto 

it  in  a  regularand  legal  manner:  and  we 
think  the  chancellor  had  authority  to  dismi 
of  prosecution,  as  he  did,  on  the  'motion.     In- 

stead ol  disi  the  bill,  he  undoubtedly  might  have 


408  SUPREME  COURT 


M'('<.]lum  v.  Prewitt. 


removed  the  next  friend  of  the  infant  complainants;  and 

that  would  have  been  the  more  usual,  and,  ordinarily,  the 
proper  course.  It  is,  however,  a  matter  as  to  which  the 
chancellor  fnust,  we  think,  be  allowed  some  latitude  of 
discretion.  We  cannot  presume  that  he  acted  in  disre- 
gard of  the  interests  of  the  infant  complainants.  On  the 
contrary,  we  think  it  fair  to  presume  that  he  adopted  the 
course  that  he  did,  only  upon  a  reasonable  conviction  that 
the  interests  of  the  infants  did  not  require  a  further  pros- 
ecution of  the  suit.  It  is  argued,  however,  for  the  appel- 
lants, that  Sibley's  heirs  were  not  necessary  parties  to  the 
suit.  But,  if  it  were  conceded  that  they  were  only  proper, 
and  not  necessary  parties;  it  would  be  the  duty  of  the 
complainants  nevertheless,  having  made  them  parties  to 
the  bill,  either  to  amend  the  bill,  and  omit  them  from  it, 
or  to  proceed  with  proper  diligence  to  bring  them  before 
the  court.  The  heirs,  however,  were  clearly  indispensa- 
ble parties;  for  the  object  of  the  bill  was  to  divest  them 
of  a  legal  title  which  had  descended  to  them. — Batre  v. 
Auze,  .">  Ala.  173;  Erwin  v.  Ferguson,  5  Ala.  158;  Ken- 
nedy v.  Kenned}-,  2  Ala.  573;  Jennings  v.  Jenkius,  9  Ala. 
286-   1  Dan.  Ch.  PI.  211,  256. 

The  decree  of  the  chancellor  is  affirmed. 


McCOLLUM  w.  PREWITT. 

|BILL  IN  EQUITY    FOE   iN.n  NOTION  OF  JUDGMENT  AT  LAW.] 

1.  Equitable  relief  against  judgment  at  laio,on  ground  of  discover;/. — Af- 
ter the  rendition  of  a  judgment  at  law  against  a  party,  he  cannot 
maintain  a  bill  in  equity  for  a  discovery  as  to  matters  of  purely 
leg:.:  nee,  without  showing  a  sufficient  excuse  for  his  failure 
to  take  the  proper  steps  to  obtain' the  discovery,  either  by  bill  "in 
equity,  orbv  interrogatories  under  the  statute,  while  the  action  at 
law  was  pending. 

2.  Same,  on  ground  of  usury — Usury  in  the  note  on  which  a  judgment 


OF  ALABAMA.  499 


McColIum  v.  Prewitt. 


at  law  is  founded,  constitutes  np  ground  for  equitable  reliefagainst 
the  judgment,  unless  a  sufficient  excuse  is  shown  for  the  failure  to 
make  the  defense  at  law. 

3.  Same,  on  account  of  surprise,  accident,  mistake,  or  fraud. — A  party  who 
seeks  equitable  relief  against  a  judgment  at  law,  on  grounds  which 
Were  available  as  a  defense  at  law;  and  who  simply  shows  that  he- 
had  a  valid  defense  to  the  action,  and  a  sufficient  excuse  for  his 
failure  to  be  present  at  the  trial  term,  at  which  the  judgment  was 
rendered  ;  but  fails  to  show  that  he  had  employed  counsel,  or  i  um- 
moiied  witness^-,  or  taken  any  other  steps  to  defend  the  action, 
although  it  was  pending  more  than  six  months  before  the  . 

was  rendered,-  does  not  relieve  himself  from  the  imputation  of 
negligence,  anil,  consequently,  is  nut  entitled  to  relief. 

4.  Same,  071  account  of  irregular  affiriHa  rlificate. — The  affirm- 
ance of  a  judgment  by  the   supreme  court,  on   certificate,  at   the 
term  next  preceding  that  to  which  the  appeal  is  taken,  may  b< 
rected   on  motion,  and,  consequently,  furnishes  no   ground    for 
equitable  relief  against  the  judgment. 

Appeal  from  the  Chancery  Court  of  Fayette. 
Heard  before  the  Hon.  James  13.  Clakk. 

The  bill  in  this  case  was  tiled,  on  the  30th  September,. 
9,  by  James  K.  McColIum,  against  John  W.  Prewitt; 
and  sought  to  enjoin  a  judgment  at  law,  which  said  Prew- 
itt had  recovered  against  said  McColIum.  and  others.  The 
action  at  law,  in  which  said  judgment  was  rendered,  was 
Commenced  on  the  20th  September,  1858,  and  was  founded 
on  a  promissory  note  for  $10o0,  executed  by  said  McCol- 
Ium and  others,  dated  the  8th  July,  185G,  and  payable 
six  months  afterdate;  and  the  judgment  was  rendered, 
on  the  verdict  of  a  jury,  on  the  l-'th  April,  185U.  The 
consideration  of  said  note,  according  to  the  allegations  of 
the  billj  ed  by  said  Prewitt  to  said  McCol- 

Ium, and  an  t,  for  about  $100,  which  M 

lum's  son  had  contracted  with  .-aid  Prewitl  :   the  residue 
consisting  of  usurio  >ti  the  money  loaned.     F-i 

addition  to  the  ;  usury,  the  complainant  alb 

had  delivered  to  the  defendant,  I 
tion  of  -..;•;  .1  idgm  bales 

of  cotton,  "upon  tin  -t  and  confidence  that  he 

(saiil   defendant)  would   take  eoutrol  of .(  .  dis- 


500  SUPREME  COl 

McCoHum  v.  Prewitt; 


pose  of  the  same,  and  appl}  fche  proceeds  to  the  di 
of  said  debt";  that  the  defendant  sold  the  cotton,  but 
failed  to  give  the  complainant  credit  on  the  note  for  the 
amount  of  trie  proceeds  of  sale,  and  refused  to  inform  him 
of  the   amount  realized    by  the   sale;   and  that  the  com- 
plainant knew  no  person,  the  defendant,  by  whom 
he  could  prove  the  trust  on  which  the  defendant  received 
the  cotton,  and  the   price,  for  which  it  was  sold.     In   ex- 
cuse of  his   failure  to  appear  and  defend  the  action  at 
law,   the   complainant    alleged,   that    his    residence   was 
twelve  miles  from  the  court-house :  that  his  wife  was  dan- 
gerously ill  during  the  entire  term  of  thecourt  at  which  the 
judgment  was  rendered,  and  required  his  constant  attend- 
ance; that  he  sent  an  agent  to  the  court,  to  make  his  ex- 
cuse ibr  non-attendance,  and  to  ask  a  continuance  of  the 
cause;  that  said  agent  informed  him,  on. his  return,  that 
the.  cause  had  been  passed   by  the  court,  in  order  that  he 
might  have  an  opportunity  to  submii  ;.u  affidavit,  stating 
the  cause  .of  his  absence  and  the  grounds  "of  his  defense;, 
and  that  the  cause  would  be  continued,  or  at  '       t.  so  much 
of  it  as  he   proposed   to  litigate,  on  the  re.        ion  of  his 
affidavit;  that  he  accordingly  made  an   ai  before  a 
justice  of  the  peace,  stating  therein    the;       inds  of  his 
defense  and  the  cause  of  his  personal    sil            .  and  for- 
warded it  to  the  court;   and  that   he. did   no,    learn,  until 
after  the  adjournment  of  the  court,  that    his  application 
for  a  continuance  had  been  disregarded,  and  a  judgment 
render". 1  against  him  for  the  full  amount  of  the  note  and 
interest  thereon*     The  complainant  further  alleged,  that, 
on  or  about  the  1st  July,  1859,  he  sued  out  an  appeal  from 
judgment,  returnable  to  the  next  January  term  of 
this  court,  and  gave  bond,  with  sureties,  to  supersede  said 
judgment;  and  that  on  or  about  the  14th  July,  1859,  the 
defendant  procured  an  affirmance  of  said  judgment  in  this 
court,  on  certificate,  "by  improperly  representing,  through 
his  attorney,  that  said  appeal  was  taken  to  the  June  term, 
'!,  of  said  court,  and  suppressing  the  fact  that  it  w;.s 
taken  to  the  January  term,  1800."     The  prayer  of  the  bill 
was  for  an  injunction  of  the  judgment,  a  discovery  as  to 


4 


OF  ALABAMA..  501 


IVfcCollum  v.  Prewrtt. 


the  proceeds  of  the  cotton,  an  account,  and  general  relief. 
The  chancellor  dismissed  the  bill,  on  motion,  for  want ol 
equity;  and  his  decree  is  now  assigned  as  ettor.    . 

W.  P.  Chiltox,  with  Thos.  M.  Peters,  for  appellant. 
E.  W.  Peck,  with  E.  A.  PoWeli,  contra. 

STOXH.  J.— [July  15,  1S01.]— The  first  point  relied  on 
in  support  of  the  equity  of  the  present  bill  is,  that  it  can  be 
sustained  as  a  bill  for  discovery.  It  has  long  been  settled  in 
this  State,  that  a  party  who  is  sued  at  law,  and  suft'ersjudgr 
inent  to  go  against  him,  can  not  afterwards  maintain  a  hill 
for  discovery  of  matters  of  purely  legal  defease  to  the  action 
at  law,  unless  he  shows  sufficient  excuse  for  not  defending 
at  law,  and  brings  himsell  within  the  rule  which,  in  cer- 
tain eases,  allows  a  party,  alter  trial  at  law,  to  have  a  re- 
trial in  equity. — See  Powell  v.  Stewart,  17  Ala.  71Q; 
1  Keav.  Dig.  2  96.     Under  this  principle,  bills  for  dis- 

covery, after  judgment  at  law,  arc  placed  in  the  same  cate- 
gory with  other  hills  for  relief  against  judgments  at  law, 
on  account  of  alleged  fraud,  or  the 

site  party. 

[2.]  The  second  ground  relied  on  is,  that  there  is  usu- 
rious interest  charged  in  th<  vered  by  the 
judgment.  This  around  stands  on  the  same  footing  as 
the  other,  and  cornea  too  late,  unless  a  sufficient  ei 
be  rendered  for  not  defending  at  law.  —  See  Mallory  v. 
Matlock,  10  Ala.  5!  5;  dote-  v.  Kirksey,  ih.  &T9. 

{'■'•. \  must,  then,  he  disposed  of  without  any 

reference  to  the  points  above  noted,  further  than  they 
tend  to  show  that  complainant  had  a  good  and  valid  de- 
fense to  the  action  R1  law.  It  was  early  settled  in  this 
court,  and  has  never  been  departed  from,  that  equity  will 
not  interfere  after  a  judgmental  law,  unless  the  party  can 
impeach  the  justice  of  the  judgment  by  fa 
of  which  he  could  have  availed  himself,  and  was  prevented 
from    '  y  fraud,  accident,  or  the 

Bite  party,  n  \rL — 


702  SUPREME  COURT 


Bovkin  &  McRae  v.  D.ddonde 


Shannon   v.  Reese,  adra'r  of  King,  both  at  the  present 

term.  In  the  present  caso.  Mr.  McCollum  had  been  sued 
some  seveu  months  before  the  judgment  was  rendered. 
He  probably  shoVs  a  sufficient  excuse  for  not  being  pres- 
ent at  the  term. of  the  court  when  judgment  was  given 
against  him.  But  for  his  omission  to  make  preparation 
daring  all  the  time  intervening  between  the  commence- 
ment of  the  suit  and  the  trial,  he  offers  no  excuse.  lie 
filed  no  bill,  and  served  no  interrogatories  for  discovery, 
in  aid  of  his  defense  at  law;  and  if  he  employed  counsel 
to  defend  him,  or  summoned  witnesses  to  testify  in  his 
behalf,  he  has  no':  informed  us  of  it.  This  does  not  re- 
lieve him  from  the  imputation  of  negligence. — Haughey  v. 
Strang.  2  Por.  177  ;  Pharr  v.  Reynolds,  3  Ala.  521  ;  Stin- 
nett v.  Branch  Bank,  9  Ah.  120;  Foster  v.  Bank,  17  Ala. 
072:  Hair  v.  Lowe,  10  Ala.  224;  Perrine  v.  Carlisle,  lb. 
686;  Watte  v.  Gayle,  20  Ala.  817;  Talliaferro  v.  Branch 
Bank,  2.°,  Ala.  755;  Allman  v.  Owen,  01  Ala.  1G7  ;  Moore 
v.  Lesueur,  :):)  Ala.  243. 

[4.]  The  irregularity  in  the  affirmance  of  the  judgment 
by  this  court,  could  have  been  corrected  on  motion,  and 
tarnished  no  ground  for  equitable  interposition. — Mc- 
Glure  v.  Colclough,-6  A  In.  492. 

Decree  of  the  chancellor  affirmed. 


BOYXIN  &  McRAE  vs.  BOIILONDE  &  CO. 

|  ACTION   FOK  I'RTCE  OF  GOODS  SOLD  AND  DELIVERED. J 

}■  Statute  of  frauds  as  to  promise  to  answer  for  debt,  t&c,  of  ano 
whether  promise  is  original  or  collateral. — In  determining  whether  a 
parol  promise  to  pay  for  goods  delivered  to  a  third  person  is  within 
the  statute  of  frauds  or  not,  the  decisive  question  is,  to  whom  was 
the  credit  given  :  if  the  credit  was  given  altogether  to  the  defend- 
ant, his  promise  is  direct  and  original,  and  not  within  the  statute; 


OF  ALABAMA.  503 


Boykin  it  McRae  v.  Dbhlonde  &  Ce. 


'secus,  if  any  credit  at  all  was  given  to  the  person  to  whom  the  goods 
were  delivered. 
2.  Same. — It  is  the  province  of  the  jury,  in  such  case,  to  determine 
to  whom  the  credit  was  given  ;  and  it  is  their  duty,  in  deciding 
that  question,  to  take  into  consideration  the  extent  of  the  under- 
taking, the  expressions  used,  the  situation  of  the  parties,  and  all 
the  other  circumstances  of  the  case.  The  fact  that  the  goods  were 
charged,  on  the  plaintiff's  books,  to  the  person  to  whom  they  were 
delivered,  if  unexplained  by  other  circumstances,  would  be  very 
strong,  if  not  conclusive  evidence,  that  the  defendant's  promise 
was  collateral  ;  and,  on  the  other  band,  the  fact  that  the  plaintiff 
and  defendant  have  both  acted  as  if  the  credit  was  given  solely  to 
the  defendant,  if  unexplained  by  other  evidence,  would  be  a  cir- 
cumstance strongly  tending  to  show  that  his  promise  was  direct 
and  original;  yet  neither  of  these  facts  is  conclusive,  but  they  are 
susceptible  of  explanation,  and  their  weight  as  evidence  must  de- 
pend upon  the  circumstances  of  the  particular  case. 

Appeal  from  the  City  Court  of  Mobile. 
Tried  before  the  Hon.  Alex.  McKltfSTRY. 

This  action  was  brought  by  F.  Dohlonde  k  Co.,  against 
the  appellants,  to  recover  the  sum  of  $1687  60,  the  price 
of  certain  goods,  wares  and  merchandize  sold  and  deliv- 
ered. The  complaint  contained  two  counts;  the  first  al- 
leging the  sale  and  delivery  of  the  goods  to*  the  defend- 
ants themselves,  on  the  31st  March,  1860  ;  Snd  the  second 
alleging  the  sale  and  delivery  to  R.  S.  &  T.  D.  Weir,  at 
the  special  instance  and  request  of  the  defendants,  on  and 
before  the  31st  March,  1860.  The  defendants  pleaded  the 
general  issue,  and  the  statute  of  frauds.  It  appeared  on 
the  trial,  that  the  plaintiffs  were  grocers  in  Mobile,  where 
the  defendants  also  were  engaged  in  business;  and  that 
R.  S.  <fc  T.  1>.  Weir,  to  whom  the  goods  were  furnished, 
were,  merchants  at  Enterprise,  Mississippi.  The  transac- 
tions between  the  plaintiffs  and  the  Weirs  commenced  in 
April,  1858,  when  the  latter  wrote  a  letter  to  the  plain- 
tiffs, requesting  them  to  send  goods  to  the  writers  at  En- 
terprise, and  referring  them  to  the  defendants  for  pay- 
ment. The  plaintiffs,  through  their  cleric,  exhibited  this 
letter  to  the  defendants,  and  inquired  whether  they  would 
pay  for  goods  forwarded  to  the  Weirs;  to  which  the  de- 


SUPREME  COUftT 

Boykin  &  VfcKae  v.  Dohlondc  X  I 

!  ied,  as  plaintiffs'  clerk  testified,  that  they 
would  pay  for  the  goods  if  the  accounts  were  presented 
rnonilily.  The  plaintiffs  forwarded  the  goods  to  the 
Weirs,  and  forwarded  other  goods  at  divers  times,  up  to 
the  l>t  March,  1860,  amounting  in  the  aggregate  to  over 
$34,000;  charging  them  on  their  books  to  the  Weirs,  and 
r  monthly  accounts  to  the  defendants.  With 
the  exception  of  three  payments,  made  by  the  Weir-',  at 
different  times,  directly  to  the  plaintiffs,  and  amounting 
in  the  aggregate  to  $3411,  the  accounts  were  paid  monthly 
by  the  defendants,  up  to  the  1st  March,  1860,  when  a  bal- 
ance of  $15S7  60  was  due  to  the  plaintiffs.  The  Weira 
ime  insolveut  about  the  1st  Marcli,  I860,  ami  trans- 
ferred all  their  assets  to  the  defendants.  The  plaintiffs 
presented  their  account,  on  which  the  suit  was  founded, 
and  which  was  then  made  out  against  the  Weirs,  to  the 
defendants  for  payment,  about  the  1st  April,  1860 ;  and 
the  defendants  then  refused  to  pay  it,  and  denied  their 
liability  for  it.  The  defendants  read  in  evidence  seven 
letters,  written  to  them  by  the  Weirs  at  different  times, 
between  the  29th  April,  1858,  and  the  30th  September; 
1859;  requesting  them  to  pay  the  writers'  accounts  with 
the  plaintiffs. 

"The  court  charged  the  jury,  (among  other  things,)  that 
they  must  ascertain  whether  the  goods  were  furnished  on 
the  credit  of  the  Weirs,  or  of  the  defendants;  that  if  they 
Were  furnished  on  the  credit  o\'  the  Weirs,  and.  the  de- 
fendants were  guarantors  or  srlreties,  then  the  plaintiffii 
could  not  recover;  that  all  promises?  for  the  debt,  default, 
or  mi-carriage  of  another,  are  void  by  the  statute  of 
frauds,  unless  in  writing;  that,  as  this  promise  was  not  in 
writing,  it  was  void,  if  it  came  within  the  statute;  and 
that  this  is  t\id  law  as  to  any  assurances  or  representa- 
tions concerning  the  dealings  of  any  other  persons.  If, 
however,  the  goods  were  famished  on  the  credit  of  fie: 
defendants  ,  and  would  not  have  been  forwarded  unless 
the  defendants  had  agreed  to  pay  all  the  bills  that  were 
tendered  monthly,  it  does  not  come  within  the* statute  of 
frauds;  and   if  the  jury  believe  that   the  plaintiffs  for- 


OF  ALABAMA.  505 


Boj  kin  &  McRae  v.  Dohlohdi 


warded  the  goods  to  the  Weirs,  time  and  again,  from 
April,  1S58,  to  April,  1860,  .and  the  defendants  regularly 
Acknowledged  their  liability  by  the  payments  of  the  ac- 
counts when  rendered,  and  did  not  notify  the  plaintifft 
that  they  should  not  continue  to  do  so,  until  after  the 
insol  !  the  W  td  their  insolvency  occurred 

after  the  March  bill  of  goods  had  been   forwarded, — such 
acts  of  t!i"  defendants  were  circumstances  to  look      .  m 
s;  what  they  con  the  contract  to  b 

The  defendants  excepted  to  th"  :,  and  r< 

ral  other  charges,  of  which  the  court  refused  th 
lowi; 

"4.     To  make  ;  i    liable  for  goods   delivered    to 

ano;'  re  must  be  an  original   undertaking  l>y  him, 

so  that  the  credit  w.  solely  to  him,  or  there  must 

be  a  c  ml .  a<  t  in  writing. 

goods  were  charged  on  the  plaintiffs'  hooks 
to  the  Weirs,  being  made  by  the  plaintiffs  themselv 
the  tiir."  of  the  sab  .  isive 

plaintiffs'  claim  a  nd;       .  as  the 

original  p  ir 

1;  the  jury  believe,  fi  evidence,  that   the 

'3  were  liable  at  all  tothe.pl;  fur- 

hen  the  lia- 

ble, ran 

find  for 
"7.     i  '' 

finally  liable ;  and  i 

not 

Tin 

and    tl  the 

1. 

J.— [Ju 

i 


\'T 

■ 

for  the  d<  dscarriagc  of  another,  ^\■ 

niltiea  have  arisen,  and  many  perplexing 

ii  taken.     But  one  unci.. 

of  dec;  in  this 

try,  thai  when  th?  promise  of  the  <1<  feiidant 

pay  for  articles  to  be  furnished  to  a  third   p        n,  if 

■  rangacti  third  person  is  r 

ble  to  the  person  who  suppli  les,  the   promise 

of  the  defendanl    '  nd,  ii'  oral,  not'binding. 

'.e  principle  decided  in  the  1 
myrv.  Darpall,  2  Lord  Raymd.  ,,  1  Hulk. 

leration  that  the  plain tift'  would 
his   horse  to  one   English,  the  defendant  promised   that 
;ld  return  him  safe.     Holt,  C.  J.,  Gould  and 
>f  opinion,  that  the   casa 
was   not  williin  the  statute,  because  thought  that 

Was  not  liable  upon  the  contract.     Mr.  Ju 
ys  diflered.     The  chief-justice  and  his  associates  in 
opinion  that  if  i  r  was  given   to  English, 

:  rould    be  within  th  ite ;    but  I 

that  do  en  dit>  had  been  given  to  him.     The 
er  for  further  eonsideration  ;  and  t1  jus- 

w  ith  the  judges  of  the  court  < 
as  finally  determined,  that,  as  English  might 
on  the   bailment,  in  detinue,  on    the 
original  deli'  e  made  by  tl  lanl  was 

in   the  reason  and  words  of  the  statute.     The  s; 
laid    down  in   Matson  v.  Wharam,  (2  ' 
Buljer,  J.,  who  said,  UT1  ral    line  now 

.  that,  if  the  person   for  whose  iods  are 

y  a  third 
:i   to   pay  thai  debt  musl  be   in  writing;  other, 
a  yoid  by  I  hi  oi   frauds,  -.:  I !ar.  II,  c.  3." 

e    rule   thus  declared   is  adopted    In  ut  Wil- 

liams, as  a  correct  construe!  ■,  in  his  note 

ETiriJa  v.  Stanton,  1  Wm.  ►Saunders,  211  (a),  and  has 
tied    by  a  great   weight  of  authority  in 
in  G  reat  Britain.     Wb 
;  inst  one,  charging  him  with  the  value 


OF  ALABAMA.  607 


,  Boykin  1  Co. 

$  goods  delivered  to  another,  and  on  hia  promise  to  pay; 
and  it,  is  sot  up  in  defense,  that  the  pron  i  to  pay 

.  tlic  debt  of  another,  and  was  not  in'writi  isive 

ion  is,  to  whom  was  the  credit  given.     If  the  credit 
/ivcn  solely  to  the  defendant — that  is,  th< 
reallysold  to  him,  thongh  delivered  to  another — the  statute 
is  thou  out  of  the  ease.     But,  if«thc  whole  credit  was  not 
given  to  the  def  ndaUt — that  is  to  say,  if  any  credit  at  all 
fiven  to  the  par'  goods — the  promise 

of  the  defendanl  is  collateral,  am!  within  the  statute.    For, 
in  tli  •  the   plaintiff  would   haw-  a  ren  iust 

th"e  party  receiving  tl  ;  and  all  the  cases  show  that 

it  does    not  upon  which  of  the  two    parties  the 

plaintiff  principally  depends  for  payment,  so  long  as  the 
person  i'ov  wl  are' furnish  cJd  is  at  all  lia- 

ble to  him. — Authorities  supra  :  Anderson  v.  Hay  man, 
III.  Black.  120;  Barber  V.  Pox,  1  Starte  B.  270;  < 
v.  Day,    17  Johns.   114;  K        land,  13  Wend. 

114,  121  :    Brady  v.  S  :  I   S.  C.  K.  511; 

Cahill  v.  Bigelow,   IS   Pick.  s  v.    Milton, 

iperton  v.  <i  !  [azen  v. 

v.  Hiuton,  6  Rand. 
1  uyee  v.  Ilun 
ratt.  03G;  Leland  v. 
v.   Drake,  4   St.rob.  431;  v.    Lodane,  10  1 

Puck-t!  v.  Bates,  4  ..  Howard,  20  Ala. 

691  ;   io  ,ntr. 

'  K<nt.  (m.  p.)  1:. 

that   if  the  tran 

mud    to  the 
plaintiff's  to  pay  i  the  prorni 

hill 

■ 

I  I  I 

pur- 


SUPREME  CO 


the  use  of  the  letter.     The  undertakings  of  the  parties 
altogether  distinct,  and  the  liabilities  growing 

of  them  must  also  be  distinct.  It  the  Weirs  are  liable 
at  all,  it  is.  as  principals;  and  if  the  defendants  are  liable, 
it  is  not  as  co-promissors  with  the  Weirs,  but  by  virtue  of 
a  distinct  contract  Of  their  own,  to  which  the  Weirs  werq 
not  parties.  Hence  the  question,  whether  a  direct  pur- 
0  persons,  for  the  use  of  one,  is  governed  by 
the  rule  above  laid  down,  or  constitutes  an  exceptiou  to 
it,  does  not  arise  upon  the  record,  and  we  express  no 
opinion  in  regard  to  it. — See  Wain  right  v.  Straw,  1 5  .Ver. 
215;    Williams,  ex  parte,  4  Verger,  579;  1  Smith's  L 

.   (5th   Am.    ed.)  880,  3*2 ;    Browne's   Stat.   Fraudsj 
§§    I  2    Parsons    Contr.    301;    Norris  v.    Spencer, 

.  324. 
:.'.    Whether  a  contract  is  collateral  or  original,  may  be 
a  question  of  construction,  as  in  Scott  v.  Myatt,  24  Ala. 

and  then  it  is  for  the  court.  But  in  cases  like  the 
•:it,  the  question,  to  whom  credit  was  given,  is  one 
of  fact  to  be  determined  by  the  jury. — 1  Parsons  Contr. 
500  ;  Storr  v.  Scott,  G  C.  &  P.  241 ;  Browne's  Stat.  Frauds, 
§l!-:i:  1  Smith's  Lead.  Ca.  (m.  p.)  134,  note;  Scott  v. 
My  at  i,  suprcu  The  entry  in  the  books  of  the  seller  is 
often  &>f,great  importance,  in  determining  to  whom  credit 
was  given.  Being  made,  by  the  seller,  it  is,  of  <•■ 
mi;  li  greater  weight  when  against  him,  than  when  it 
his  claim.     If,  on  production  of  the  plaintiff's 

.  it  appears  that  the  defendant  was  not  originally 
■debited  there,  but  that  the  goods  were  charged  against 
the  person  receiving  them,  this  fact,  if  unexplained  by 
oth<  .  would  be  very  strong,  if  not  conclu- 

sive evidence,  that  credit  was  given  to  the  person  v 
ing  the  goods.— Storr  v.  Scott,  G  C.  &  P.  241  ;  llazcn  V. 
Bearden,  4  Sneed,  48;  Belaud  v.  Creyon,  1  McCord,  100; 
Matthews  v.  Milton,  4  Yerger,  576;  Flanders  v.  On 
1  puer,  20G;  1  Parsons  Contr.  499  ;  Browne's  Slat,  Fr. 
§  198  ;  1  Smith's  Lead.  Ca.  (m.  p.)  134,  note.  I3ut,  as  the 
question,  to  whom  credit  was  given,  must  depend  upon 
the   intention  of  the  parties,  the  fact  that  the  goods  are 


OF  ALABAMA.  509 


Boykin  v.  (kfoRae  v.  Dohlcmch  &  Co. 


charged  to  the  person  receiving  them,  is  not  conclusive, 
but  may  be  explained,  and  made  consistent  with  the  as- 
sumption of  the  defendant's  primary  liability.  Other 
circumstances  in  the  I  y  show  (as  was  done  in    San- 

ford  v.    Howa  ,  and    Ilazen  v.  Bearden. 

pra,)  that  the  account  was  80  kept  lor  convenience,  and 
to  avoid  confusion  and  misunderstanding;  and  that  in 
point  of  fact  the  credit  was  given  to  the  d<  fendant,  and 
considered  liable  for  the  goods. — See,  also,  (hit- 
ler v.  Ilinton,  6  Rand,  509  :  Loomis  v.  Smith,  17  Conn. 
Ho.     On  the  other  hand,  if  the  defendant  has  been  treated 

,e  person  selling  the  goods,  and  has  himself  acted  as 
if  he  were  the  sole  party  liable,  that,  if  not  explained  by 
other  evidence,  would  be  a  circumstance  conducing  to 
show  that  his  promise  was  not  collateral.  But  it  fs  ini- 
pecify  any  one  let.  or  set  of  facts,  on  which 
the  question,  to  whom   the  plaintiff  dit,  is   to  be 

determined;  and  the  weight  to  which  any  particular  fact 
may  be  entitled,  must  vary  with  the  varying  circumstan- 
ces with  which  it  may  he  found  connected.     Consequently, 

o  there  is  any  conflict  of  evidence  upon  the  Bub 
the  weight  to  In-  given  to  any  particular  circumstance 
should  he  left  to  the  jury,  who,  in  deciding  the  question, 
to  whom  the  credit  was  given,  should  take  into  consider- 
ation "the  extent  of  the  undertaking,  th<  ions 
used,  the  situation  of  the  parties, and  all  the  circumstan- 
ces of  th  "—Elder  v.  Warfietd,  7  i  Ila- 
zen v.  Bearden,  4  Sneed,  Stat.  Frauds, 
§  199. 

jiii cut  musl  be  i  lore 

pointed  out,  and  as  what  we  have  all  id  will  proba- 

bly turn  luct  of  the  cause 

nother  trial,  we  do  not.  deem  it  i  mine 

I  and  n  >r  the 

to. 

Judgment  use  remand 


510  SUPREME  COURT 


n  v.  3uck< 
IIERRiX  vs.  BUOKBLEW. 

tOM    JUSTICI 

1.  ('  :e.— Where  several  promi 

notes,  each   for  a  less  Bum  ihan  fifty  dollars,  are  execute!   at  one 
and  tlie  .same  time,  lor  a  single  deht  amounting 
their  several  sums,  and  fire  made  payable  on  the  same  da}-,  such 
notes  aire  within  the  civil  jurisdiction  of  a  justice  of  the  pea 

L  from  the  Circuit  Court  of  Randolph. 

■  the  Hon.  Robert  Dougherty. 

The  agreed  facta  of  tins  case  are  these :  On  the  26th 
January,  Stephen  W.  Herrin  borrowed  $1260  from 

F.  W.  Buekelew,  and,  to   secure  the  repayment  thereof, 

w  twenty-eight  promissory  n< 
sach,  till  dated  on    said  26th  January,  1858,  and 

ble  on  the  25th   December  next  after  date;  which 
notes,  were  also  signed  by  J.  M. 'Baker  and  James 
as  sui  for   said   Herrin,   and   co-makers  with   him. 

These  notes  being  uupaid.  at  maturity,  Buekelew  insti- 
tuted separate  suite  Qti  them  against  the  makers,  before  a 
justice  of  thi  •  q\\  the  suits  being  commenced  on 

■  day.     The  defendants  pleaded   in  abatement  to 
the  jurisdiction  of  the  justice;   but   a«  demurrer  was 
tained  to  their  plea,  and  judgment  rendered  against  them 
in  each  of  the  cases.     The  eases   were  removed  by  < 

into  the  circuit  court,  and  were  there  consolidated. 

defendants  again  pleaded  in  abatement,  and  a  de- 
murrer was  again  sustained  to  tin  ir  plea  ;  and  this  ruling 
of  the  court,  to  which  they  reserved  an  exception,  is  the 
only  matter  assigned  as  error. 

Heflin  &  Forney,  i'ov  appellants.— 1.  The  several 
notes  were  executed  at  one  and  the  same  time>  for  the 
same  debt,  and  as  parts  of  one  and   the  same  contract; 


ALABAMA.  _     51t 

Herrin  v.   Buckdew. 


find  they  ar<  jtrtimeut. 

Glassed  v.  Chapman,  13- Ala.  50;  Strong's  Execfctors  \\ 
Brewer,  17  Ala.  706;  Elliott  v.  McClelland,  17  Ala.  .  ; 
Dumas  v.  !!  'arby,  24 

[min  v.   Crane,  L6   Ala.  57(i;  Tripp 
Tiippe,  29  Ala,  G37.     The  notes  are 
only  ili"  evidence  of  th< 

2.  A  single  and  entire  cause  of  action  cannot  be  split 
lip  into  several   suite. — Oliver  v.   Holt,  11   Ala.  574;   Oe 

iry,  3  Porter,  921  ;  O'Neal  v.  Brown,  21  Ala. 
:   Wittick  "v.  Trail  n,  87   Ala.  562  ;   i. 
Bpn,  81  Ala.  162;  15  I,  5&T. 

3.  At  common  law,  aj  oi  the  peace  had  no  civil 
jurisdiction. — Betuer  v.    '  11,   J7  Ala.  830;  Elli 

40;  7  \\  ■.     Under  the  CO 

tuition  of  this  State,  (art.  V,  §10,)  his  civil  jurisdiction  is 
limited  I  n  which  the  amount  in  control 

rs.     To  allow  the  pi  cich  a  de- 

irs   in  this  case,  to  evade  th 
|  i,  would  enable  them  to  do  indirectly  wbal  I 

could  not  do  directly,  and   1  fraud  on  the 

on   of  the  justice.      Moreover,  consent   of  the 
an  not  gij  of  a  Bui 

ted  by  law. — Wyatt  v.  .1  7  ;    \Vinn  v. 

ile,  19  Ala.  171;   Merrill  v.Jo  34 ;  Oak- 

k,  552. 

( !.  !>.  [luDt:  ra,  cited  Xibbs  v.  ft) 

1\  198  ;    V,  iusti  .,  v. 

A.J.    •  d.— [June  7,   18G1.]— The   only 

.    whether  a  justice  has  jurisdiction 
ill  under  fifty  doll 
iadivicl  i 

, 

.   fiitj   dollai 
V 

an   fifty  dol 


512  SUPREME  COURT 


Strickland's  Adooi'r  v.  Walker. 

.mount  in  controversy  is  under  fifty  dolli  .ith- 

etanding  each  note  may  be  for  a  part  of  a  <1  ' 
i         amount.     ThesplitMugup  of  a  debt  into  sums  under 
fifty  dollars,  involves  no   fraud  upon  the  jurisdiction  of 
the  court.     The  creditor  may  lawfully,  by  his  own 
rate  act,  bring  by  a  receipt  a  debt  over  fifty  dollars  within 
the  jurisdiction  of  a  justice  of  the  peace;  and  i 
may  the  same  thing  be  done  by  the  concurrent  act  of  the 
creditor  and  debtor,  in  dividing  a  debt  into  several  debts, 
each  for  an  amount  under  fifty  dollars.     These  pro] 
tions  are  well  sustained  by  the  authorities,  and  we  need" 
not  elaborate  them. — Fortescue  v.  Spencer,  2  li 
63;  Dew  v.  Eastham,  5  Yerg.   297;  JSTibbs-  v.  Moody, 
5  St.  &',  P.  198  ;  King  v.  Dougherty,  2  St.  437  ;  Baird  % 
■2  Port.  186.    This  court  said,  in  Nibbs  v.  MoOdy, 

,  that  there  was  nothing,  either  in  the  constitution, 
or  in  the  act  defining  the  jurisdiction  of  a  justice,  to  pre- 
vent the  parties  from  reducing  a  debt,  originally  for 
more,  to  a  less  sum,  and  making  it  the  amount  in  con- 
1  :  and  thai  that  might  be  done  by  the  joint  act  of 

1  dividing  the  sum  into  new  notes,  by  payment 

of  part,  and  entering  a  credit  on  the  note,  or  by  the  cred* 
itor's  voluntary  relinquishment  of  part.  #  This  statement 
of  the  law  is  entitled  to  our  fullest  approbation,  both  on 
account  of  its  obviou  id  the  long  and  un- 

interrupted acquiescence  in  it  for  more  than  twenty  years. 

firmed. 


STRICKLAND'S  ABM'R  w.  WALKER. 

S   PROMISSORY  NOTE,  BY  PAYEE  AGAINST  MAKJ 

1.  Statute  of  limitation*  ;  mb%<  hnowledgment — To  re- 

vive a  debt  1  the  statute  of  limitations,  the  sul>s<"|"crit 

lear  and  explicit;  but  it  is  not 


OF  ALABAMA.  51B 


Im'r  v.  Walker. 


iry  that  th  which  that  promise  br  acknowledg- 

ment is  establ  i  i 


Appeal  from  the  Circuit  Court  of  Tallappc 
Tried  before  the  Hon.  Robert  Dougherty. 

This  action  was  brought  by  William  Towns,  as  the  ad- 
ministrator of  the  estate  of  Silas  Strickland,  i] 
agai«st  John  Walker  and  Joshua  Strickland  ;  was  founded 
on  the  defendants'  promissory  note  for  §1,000,  dated  the 
26th  December,  1843,  and  payable  one  day  after  date,  to 
said  Towns,  administrator,  &e.;  and  was  commence^  oti 
the  10th  day  of  March,  1852.  The  defendant  Strickland 
not  being  served  with  process,  a  discontinuance  \v; 
tercd  as  to  him;  and  the  action  was  revived,  before  the 
trial,  in  the  name  of  Allen  Eiland,  as  the  administrator 
dc  bonis  non  of  Silas  Strickland.  The  defendant  Walker 
pleaded,  among  other  things,  the  statute  of  limitations 
of  six  years;  and  issue  was  joined  on  that  idea.  The 
note,  which  was  read  in  evidence  on  the  trial  by  che  plain- 
tiff, had  a  credit  of  §204  34  endorsed  on  it,  dated  the  1st 
January,  1851,  and  signed  by  said  Towns,  as  administra- 
tor. The  plaintiff's  evidence  tended  to  show,  thai  this 
credit  was  entered,  with  the  consent  of  the  defendant 
ker,  ou  a  settlement  of  accounts  between  him  and 
said  Towns,  and  was  written  by  one  Wheaton  ;  while  the 
defendant's  evidence  conduced  to  show,  thai  ras- 

ed to  the  entry  of  the  credit     The  court  charged  the 

jury— 

"1.    That  the  I  the  defendant  Walker,  to  the 

entry  of  the  lere 

prob:  bil  i  ties  ;  but,  before  the  plaintiff  can  recover,  he  must 

licit,  that  W. 
did  c  iin- 

tiff  h  eir  minds  on  thi 

find  ;'■  n  ndant. 

"2.    That  1 1  inly 


>14  SOI 


Strickland's  idm'r  v.  Walker. 


:  to  .said  the 

time  it  was  brougbt,  the  plaintiff  can  not  recover." 
Tin.'.-*'  charges,  to  which  the  plaintiff  except  (ow 

.  ed  as  error. 

;■'.  i'\  Rice,  with'  Cloptos  &  Ligon,  for  appellant. 
o.  W.  Gi:nn. 

STOKE,- J.— [Feb.  11,  1861.] — The  first  charge  given 
and  excepted  to  in  this  case,  asserts  that,  to  revive  a  debt 
barred  by  the  statute  of  limitations,  the  promise  or  ac- 
kno.  rtt   must  be  proved  by 

and  We   have  duly  weighed  this  language,  in 

connection  with  the  authorities,  and  feel   constrained  to 
ce   it  erroneous.     The   promise,  or  acknowledg- 

,  must  be  clear  and  explicit.     No  doubtful,  ami 

or  indeterminate  lauo         swill  avail.     It  must  he,  in 
terms,  unequivocal  ah  erminate.     If  it  be  aproni- 

s  an  unequivocal  promis    :  if  an  ackuowl 
incut,  that  acknowledgment    urns'    .     the   length  of  ad* 
mi:  sent  exi  ;  ,  which  the  party 

is  willing   to   pay.     These   princ:  fully  settled,  in 

this  State,  by  numerous   adjudi  ;. — Ross  v.    I 

20  Ala.  105  ;  Townes  i.  Ferguson,  1 7 ;  Bryan  v.  Ware, 
&£-.•  687  ;   Moore  v.  Lesueur,  1  i;   Boxley  v.  Gayle, 

.la.  151 ;  Pool  v.  Eteli  la.  701 ;  Pitts  v.  Wooten, 

24  Ala.  474.;  Jordan  v.  Hubbard,  26  Ala.  438;  Rolstonv, 
Langdon,  26  Ala.  660;  Evans  v.  Carey,  23  Ala.  99;  Bell 
v.  Morrison,  1  Pet.  8.  C.  360. 

Bui  there  ie  a  wide1  difference  between  the  ,  or 

acknowledgment,  and  the  evidena  by  which  that  promise  or 
acknowledgment  is  made  to  appear.  The  former,  no 
matter  how  clearly  it  be  proved — even  though  it  be  iu 
waiting — is  not  sufficient,  if'  its  terms  be  equivocal  or  in- 

smiuate.  But  there  is  no  ride  which  requires  that 
the  proof  of  such  promise  shall  be  different  in  measure, 
or  more  strict  than  that  which  is  required  to  establish  any 
disputed  fact  in  a  civil  suit.  Evidence  which  satisfies  the 
minds  of  the  jury,  is  enough. 


OF  ALABAMA.  515 


' ilm'r. 


We  suppose  th*e  circuit  court  was  misled  by  an  inaccu- 
rate expression  found  i1'  the  opinion  in  ■  of  Bell 
end  <?topie<j  by  Mr.  Greenleaf  in  his 
work  on  Evidence,  2d  vol.  §  i  10.  The  language  of  the 
court  in  that  case  was,  that  "whenever  the  bar  of  the 
Statu  light  to  bo  removed  by  proof  of  a  new  prom- 
promise,  as  a  new  cause  of  action,  ought  to  be 
proved  in  a  clear  and  explicit  manner."  The  point  in  the 
case  of  Bell  v.  Morrison  was  on  the  si  y  of  the 
and  not  on  the  ■  by  which  that  promise 
was  proved.  The  meaning  of  the  court  must  have  been, 
th;r  the  promise  should  be  clear  ana"  explicit.  Thus  con- 
strue!, it  harmonizes  with  the  weight  of  the  American 
and  the  later  English  decisious,  and  with  the  analogies  of 
the  law. — See  authorities  supra;  and  Bangs  v.  Ball, 
2  Tick.  368  :  Gardiner  v.  Tudor,  8  Pick.  200  ;  Cambi 

•hart,  10  Pick.  2  Punt  Stephen  v.  Brook,  3  B. 

1.  141  ;  Tanner  v.  Smart,  6  B.  &  Cress.  G03. 
It  is  not  our  purpose  to  criticise   the   2d   charge  given. 
Griffin,  6  A!  i.  3&7  :   Earbifi   v.  Levi,  ib.  ■ 
ice  v.   Rutledge,    11   Al:  Barron  v.  Vamlvert, 

la.  232. 
The  judgment  of  the  circuit  court  is  reversed,  and  the 
cause  remand 


WAT:    'X  ro<  OOLJ  U)M'R. 

tient 

in  I 

till'  su<  .-  in  i. 


;  BUPREM 

Adm'r. 

I 

idw  that  his  letters  of  administration  are  void,  for  want 

of  .!                       :'.  t  by  which  tin 
plea  in  bar. 

3.  Va  ion. — A  grant  of  let                  I  min- 
is! i 

the  intesl  n  inhabitant  ol 

time  of  hi^  d 

de  I  ranted  by  the  probate  court  of  the  county  in  which 

the  had  his  domicile  at  the  time  of  his  death,  >oid  for 

want  of  unadmini  i  ode,  21720,)  althon  light 

be  irregJilar  and  i  • 

4.  I'  »irt,  Jor  (/< 

the  pro'  ate  court,  fbr  th      sale  of  a  d  sc<  dent's  1  pur- 

pose  of  division  among  the  heirs,  obtained  by  an  admini 
bou,  inted,   is   not   rendered  void    by  the   prior 

d.  of  tin- land  to  the  heirs,  the  payment  of  all  the  debts,  and 

if  the  personalty  by  the  administrator  in   chief; 
aid:  »d   grounds  of 

in  the  j  irt,  to  the  granting  of  the  order. 

.  —In  an  action  on  a 
fori  money  of  land,  sold   by  an   administrator   under 

■  -bate  court,  a  defect  in  the  I 
suit,  if  the  court  had  jurisdiction  to  oi 

Appeal  from  the  Circuit  Court  of  Choctaw. 
Tried  before  the  Hon.  0.  W.  Rapier. 

The  complaint  in  this  case  was  in  the  following  words: 
"A.  R.  Davis,  adra'r  of  the  estate  oi  A\  m.  Collins,  dee'd, 

[*  Watson,  ,1.  W.  dwell,  G.  B.  Walk 
"The  plaintiff  claims  of  (he  defendants  the  sum  oi  onfi 
hundred  and  sixty-one  60-100  dollars,  duo  by  their  prom- 
issory note,  made  by  them  on  the  9th  August,  1856,  and 
ble  on  the  1st  January,  1857,  with  interest  thereon  J 
the  said  sum,  when  collected,  being  assets  oi*  the  estate 
of  William  Collins,  deceased.'' 

To  which  the  following  plea  was  filed  :  "Th  Ian* 

C.  L.    Watson,  for  answer  to  the  complain;  that 

the  note  mentioned  in  the  comnlaint  was  made  and   exe- 


OF  ALABAMA.  517 


is'  Adm'r. 


cuted  by  him  for  the  payment  and   purcha  tain 

land  in  said  count;  -ribingit,)  "whic  id  plain- 

Iministrator  Wil- 

liam Collins,  formerly  of  Gre  nty,  elect 

and   undertook   in   sell   a-'  an  an  mi  of 

said  and  which,  upon  audi  oft<?r  and  undertaking, 

and  upon  the  plaintiff's  ntation  that  he  was  ad- 

mini  ai.],  this  defendant  hid  pre- 

tend".!   ale  thereof  at  auction,  made  by  the  j  and 

id    note   for,  in    the   belief,  and  upon  the 
faith  thai  the  plaintiff  was  Iministrator,  a  uch. 

authorized  to  sell  .said  land  ;   whereas,  in  trutl  end- 

ant  a  not,  at  the  time  of.  the  plain  tiff's  said 

nded  appointment   as  administrator  of  the  estate  of 
.Villiam  Collins,  tp-wit,  in  February.  tate 

whatever  of  the  said  Coll'  f,  in  the  State 

of  Abb;  which    an    administrator   could    be    ap- 

pointed, 'U-  any  allegation  or  proof  made  to  the  court  that 
there  was   any  such    ■  or  that    said  estate 

•  ted,  or  any  not;  h  intended  appointmept 

the  heirs;  but  that  sai<l  before  that  time, 

en   the   yeai  fully 

I    and    di  ling   to    law,  all    the 

id,  and  uch 

ftdmini  tration,  to-wit,  under  the  authorit  :iou 

of  the  orphans'  court  >-ua>,  in 

7  :  and  I  hal  the  laud  bad  belonged  to 

* 
land 

law 
of  the  •  lid  Collii 

gran 

:   of  all  whb  ntiff  had  no 

t  knew  nothi 

' 
said    !:  nd,  oi 




\V.  Q*r. 

heirs  of  said  Collins,  and   e 
'  of  the  i 
there  is  a  want  and  total  failure  of  < 
said  note  made  by  nim  as  aforesaid." 

The  court  sustained   a  demurrer  to  this  plea,  and  its 
judgment  on  the  den  ?igned  as  error. 

llant,  cited 
veil,  9Ti  iller  v.  J  7;   Mattl 

v.  Douthitt,"  27  Ala.  . 

■ 

I;.  W.  WALK&R,  J.— [June  23, 1SG1.]— [1-2.]  In  the 
mar.  I  e  complaint,  the  plaintiff  is  styled  "admin- 

istrator of  th  sof  William  Collins,  d  :."  This, 

uld  he  mere  descripti  but  the  i 

plaint  allege.3,  that  the  sum  sued  for  will, "when  colh 
be  assets  of  the  estate  of  William  Collins,  deceased,  which 
is  sufficient  to  show  that  the  suit  is  brought  by  the  plain- 
tiff in  hi  itive  character. — See  v.  Plantf 
31  J              )•  Arrington  v.  Hair,  1!)  Ala.   24:};  Tate  v. 
Shacjdeford,  24  Ait.  210.     Hence,  n   plea,  al 
which  show  tba(  the  plaintiff's  letters  of  administn 
are  void,  for  want  of  jurisdiction   in   the  court  1 

•.hi  I'.'  a  good  plea  in  bar. — Miller v: 
Jon  .  i7. 

[3.]  But  we  do  no1  think  tl  filed  by  the  de- 

fendant does  this.     Unfler  onr  I;  vvs,  it    is  only  when  the 
intc-  out  of*  1 1  I  he  time  of  his  death, 

that   the  in   the  rv  to 

court  jurisdiction.  Consequently,  the  non-exist- 
ence of  assets  ii  ould  not  make  an  adminis- 
tration void,  if  the  intestate  was  an  inhabitant  of  the 
county  at  the  time  of  his  death. — Code,  §  1067.  Nor  do 
we  think  that  an  administration  dt  ranted  by 
the  probate  court  of  the  county  in  which  the  intestate  had 
his  domicile  at  the  time  of  his  death,  would  be  void  for 
want  of  unadministered  assets,  although  it  might  be  ir- 
i!:u-  i.nd  revocable^ — Code,  §  1720. 


OF  \. 


Parish  v.  Parish. 


[4-5.]  Neither  does  the  plea  show  that  the  court   : 
no  jurisdiction    to  order  the  sale.     The   prior  d 
the  land  to  the  heirs,  the  payment  oi  and   the 

ibution   of  the  personalty  by  the   administrator  in 
chiet,  would  not  render  mid  an  order  of  sale  for  division, 
obtained  by  a  legally  appointed  admihistratoi 
although   t1  oy  might  constitute  a  good  ground  of  ol 
tion,  in  the  probate  court,  to  the  granting  of  t: 
A.fld  if  the  court  had  jurisdiction  to  order  th  de- 

fect in   the  title  is  n,p -defence  to  .a  suit  for  the  purchaser 
mon  n  kin  v.  7    Ala.   179.;   Worth  in  gto  n  V. 

L4  ;  S.  C,  9  Ala.  297  ;  Jennings  v.  Jen- 
:  Pool  v  la.  752; 

Itamilton,  33  Ala.  210. 

Judgment  affirmed. 


.  PARISH. 

L  IN  KQVn  J 

i  thi>  prop  of  my  [li 

■  h,"     n-  ■  '■ 

Tir:    hill    in    f 

William 

!i  ;  and 


i heir  hire,  and  the  c: 
anient,  by  which   the  complainant  hud  ro- 
ll  his  inter*  -  to  William 
The  complainant  claimed  the 

from   Amy  Parish,  dated  the   21st  June,  1844,  and 
them  in  his  |  n,  aa  he  alle  >m  the  time 

conveyai  .1,  until   February,    1S;J4,   v 

William  Parish,  by  fraud  and  misrepresentation,  suc- 
ceeded in  obtaining  the  ;  ion  of  them,  and  induced! 
the  complainant  to  release  all  interest  in  them  to  him. 
The  hill  alle  Parish  had  posse  the 
slaves,  held  them  adversely  to  William  Parish,  and  claimed 
title  to  them  as  the  property  of  the  estate  of  Edward  Par- 
ish, d  !,  of  which  he  was  the  administrator;  and 
that  William  Parish  had  instituted  a  suit  against  him  to 
them.  The  bill  also  prayed  an  injunction  of  this? 
suit,  and  general  relief. 

Amy  Parish,  William  and  Roger  Parish,  and  the  com- 
plainant's wife,  were  the  children  of  Edward   Parish,  de 

id,  who  died  in  'South  Carolina,  where  he  then  re- 
sided, in  1822.     The  last  will  and  testament  of  said    Ed*- 

I  Parish,  which  was  dated  the  5th  dune,  ^822,  and 
admitted  to  probate  on  the  Oth  August,  1822,  and  of  which 
said  Amy  Parish  was  appointed  the  executrix,  contained 
the  following  clauses:  "First,  1  give  and  bequeath  to  my 
beloved  daughter,  Amy  Parish,  two  negroes,  viz.,  Bid  and 

r;  also,  one  plantation,  or  tract  of  land,  lying  and 
being  as  follows,"  (describing  it,)  "to  be  her  right  and 
property  during  her  life-time,  and  her  heirs' after  her,  to- 
gether with  their  increase;  hut,  should  she  die  without 
an  heir,  then  the  said  property  to  be  equally  divided  among 
the  rest  of  my  heirs.  Secondly,  I  give  to  said  Amy  Par- 
ish all  the  rest  of  my  estate,  real  and  personal,  to  be  dis- 

d  of  by  her  as  she  thinks  lit  among  my  lawful  heirs 
■y  death/'  Amy  Parish  duly  qualified,  in  South  .Caro- 
lina, as  the  executrix  of  said  testator's  will,  and  afterwards 
brought  the  slaves  to  this  State,  where  she  died,  in  the 
latter  part  of  the  year  1853,  without  children,  and  having 
never  married.     The  slaves  in  controversy  arc   the   de-* 


OF  ALABAMA.  521 


Parish  v.  Parish. 


scendantsof  the  woman  Sid,  mentioned  in  the  first  clause 
of  said  will. 

The  defendants  filed  separate  answers.  William  Par- 
ish admitted,  that  Amy  Parish  owned  the  absolute  prop- 
erty in  the  slaves,  and  had  conveyed  them  to  the  Com- 
plainant; and  he  alleged,  that  he  had  purchased  thecora- 
plaiuant's  interest  in  them,  for  a  fair  and  valuable  consid- 
eration, without  any  fraud  or  misrepresentation.  P 
Parish  admitted,  that  the  conveyance  from  the  complain- 
ant to  William  Parish  was  procured  by  fraud  and  other 
improper  means,  and  ought  to  be  set  aside  ;  but  he  denied 
that  Amy  Parish  owned  the  absolute  property  in  the 
Blaves,  and  insisted,  on  the  contrary,  that  she  took  only 
a  life-estate  under  the  will  of  Edward  Parish.  Each  of 
the  defendants  demurred  to  the  bill,  for  want  of  equity, 
for  misjoinder  of  parties,  and  because  the  complainant 
had  an  adequate  remedy  at  law;  and  William  Parish 
prayed  that  his  answer  might  be  taken  as  a  cross-bill  for 
the  recovery  of  the  slaves  from  Roger  Parish,  with  an  ac- 
count of  their  hire,  and  for  general  relief. 

At  the  November  term,  1858,  by  agreement  of  counsel, 
the  cause  was  submitted  to  Chancellor  Kkves,  for  a  decree 
on  the  legal  effect  of  the  will  of  Edward  Parish  ;  and  he 
held  that,  under  the  first  da  id  will,  Amy  Parish 

took  an  absolute  estate  in  th<  At  the  May  terra, 

.  on  final  hearing  nd  proof,  Chancellor 

Saffold  presiding,  the  complainant's  bill  was  dismissed, 
at  his  cost;  and  a  decree  I,  directing  P 

h  to  deliver  up  the  i  William  Parish,  and  to 

•unt  with  him  for  the  hii 

The  appeal   i  -  ted   by  '  '  'arieb  •  and, 

in i ■ : 1 1  of  ily  matter  a  rror 

which  i  i  the 

uction  •  will. 

LDTHWAl  .  with  whom   was  L.  L. 

Oato,  cil  fan- 

ner v.  Livingston,  12  Wendell,  83;  Toi      I 
Nutwell,  13  Md.  415;  Findlay  v.  Riddle,  8  Binney,  148; 
34 


SUPREM1 

is,  4  Tei 

souri. 

Ilainm 

.  -r>  Ala.  -"'7- ;   lv 

A.J.  WALKER,  C.  J.— [June  17.  1861.]— Th 

inbt  that  the  chancellor  ling, 

that  Amy  Parish  took    the  and  that  the 

word  hei  '  limitation,  and  not  of  pure! 

nothing  in  the  context  which  shows  that  the 

hildren.     The  limi- 
tation  <  i  of  the  first  taker  witl 
heirs,  with  tl                     that  the  property  should  he  then 
divided,              >t  qualify  ive  the  i 

children.     There  ia  no   qualification 
wh;  ii ta  the  heira  generally,  lineal   or  collateral, 

king.     The  evident  meaning  of  the  I 
that  all  ;  who  might   be  tin'  heira  of  Amy  i  t    her 

th,  might  and  they  can  not  take  as  pup- 

chasers.     "When  they  take  in  the  character  of  Ik 

I  take  in  the  quality  of  heirs."     The  rule  in  Shelley's 

aud  raergea  the  limitation  over  to  the  heirs 

in  the  life-estate,  and  enlarges  or  cxpanda  the  life-estate 

into  a  fee.— Price  v.  Price,  5  Ala.  578  ;   Hamner  v.  Smith, 

;   Bwing  v.  Btandifei  \  a.  400;  Machen 

v.  Machen,    L6  Ala.  878;  [shell  v.  Maclin,  24  Ala.  315; 

ford  v.    Bull  Ala.  418;  Lloyd  v.  Rambo, 

Ua.709. 

In  pursuance  of  th<  I  of  counsel,  the  approval 

of  the  chancelloi  ion,  upon  the  single  point  which 

we  have  noticed,  must  work  an   alii  nuance. 


ALABAMA.    K- ^-v 


aughn  r.  Heath. 

:i\  r  .  he  \TII. 

[tki  H  F!<):c.]t.1 

l.   1  charge  to 

givevindic 
-  they  believe,  from   fli"  evidence,  that   t!i 

<ing, 
or  insulting  mam 
the  ity. 

tatate  or  rale  of  law  in  this  State,  v 
r  articles  harmless  in 
at  of  his 

-rticles  to 
t ho  flav 

Appeal  from  the  Circuit  Court  of  Chambers. 
Tried  before  the  Hon.  Uobert  Doughee? 

This  actioi  am- 

uel 
and  Washing 

on  the  plaintiff's  lands.     I 
deuce  adduce  d  on  the  trial,  that  one  of  jlms 

f  trailing  wit 
aud  laid  him,  1>\  .  e  to  the 

plaintiff's  house  by  night,  with  a  pii  to  -'11, 

whii  g  of  the 

which 

nd, 
•elf  in  th 

that  he  I 

and 

D>*  the  ]  s  and 

when  the  plainth  ad- 


sr  ':t__ 

Devaughn  v.  Heath, 

ants  ran  oft";  but  one  of  them  was  overtaken  by  the  plain- 
tiff and  Hammond.  Hammond,  who  was  introduced  as 
a  witness  by  the  plaintiff,  testified  to  the  information 
which  the  plaintiff  received  of  the  defendants'  plot,  and 
to  the  facts  which  occurred  on  the  plaintiff's  premises  on 
the  occasion  referred  to.  The  defendants  proved,  that  the 
plaintiff  had  made  inconsistent  declarations  at  different 
-.  when  speaking  of  the  occurrences  at  his  house  on 
the  night  of  the  alleged  trespass;  and  that  he  or  his  wife 
had  given  two  or  three  pairs  of  old  pantaloons  to  De- 
vanghn's  slave,  who  had  formerly  belonged  to  Mrs.  Heath's 
first  husband. 

The  court  charged  the  jury,  at  the  request  of  the  plain- 
tiff, "that  if  Devaughn's  slave  had  been  an  old  family  ne- 
gro of  the  plaintiff's  wife,  then  the  plaintiff,  or  his  wife, 
had  a  legal  right  to  give  said  slave  several  pairs  of  old 
pantaloons,  without  the  knowledge  or  consent  of  his  mas- 
ter." The  defendants  excepted  to  this  charge,  and  re- 
quested the  court  to  instruct  the  jury,  "that  they  can  not 
give  vindictive  damages,  unless  they  believe,  from  the  ev- 
idence, that  the  defendants  maliciously  entered  the  plain- 
tiff's lands,  in  a  rude,  aggravating,  or  resulting  manner, 
and  committed  the  trespass  alleged  in  the  complaint." 
The  court  refused  to  give  this  charge,  and  the  defendants 
excepted;  and  they  now  assign  as  error  the  charge  given, 
and  the  refusal  of  the  charge  asked. 

Allison  &  Andrews,  Richards  &  Falkner,  for  appel- 
lants. 

Brock  &  Barnes,  Chilton  &  Yancey,  contra. 

STONE,  J.— [June  28,  1861.]— The  charge  asked  by 
the  defendants  in  the  court  belo'w,  and  refused  by  the 
court,  assumes  that,  to  justify  t,he  jury  in  awarding  vin- 
dictive damages,  in  an  action  of  trespass  quare  dausuffl 
fotgit,  the  defendant  must  have  entered  the  land  malicious- 
ly, in  awivde,  aggravating,  or  in  manner.  -These  con- 
joint words  evidently  erected  too  strict  a  standard  of  lia- 
bility. Trespasses  might  be  so  wantonly  or  recklessly 
committed,  as  to  justify  the  imposition  of  vindictive  dam- 


OF  AL  A  B  VMA. 

Devaughn  v.  Heath. 


ages,  without  any  evidence  of  actual  malice  towards  the 
owner  of  the  property  tr<  I  upon.     The  word  aggra- 

vating was  probably  employed  as  the  synonym  of  ojfeni     \ 
or  insulting.     According  to  it  this  meaning,  eases  may  be 
imagined,  which  would  call  for  exemplary  damages,  v 
the  act  complained  of  was  neither  tumultuous,  gros  ly 
abusive,   couteniptuoUs,   nor   strictly  insulting.     It    has 
been  ruled  that,  "in  cases  attended  with  circumstanc 
aggravation,    the  jury    may  give  exemplary  damag 
Mitchell  v.  Billingaley,i7Ala.394;  Parkerv.Mise,27Ala. 
48-3.     When  the  circuin  of  the  trespass  are  rudej 

or  insulting,  malice  may  be  inferred  from  them.  So, 
malice  or  ill-will  may  be  found  to  exist,  when  there  are 
no  accompanying  acts  of  rudeness  or  insult.  The  charge 
was  properly  refused. — 2  Greenl.  Ev.  nd  note. 

[2.]  The  charge  given  asserts,  that  Mrs.  Heath  had  the 
legal  right  to  give  to  Ralph,  the  slav  :.  Devaughn, 

three  or  four  pairs  of  old  pantaloons,  without  the  know- 
ledge or  consent  of  the  latter.  We  have  looked  into  this 
question  with  much  care,  and  cannot  iind  that  the  circuit 
court  erred  in  giving  this  charge.  The  articles  are  harm- 
character,  and,  if  gicen,  could  not  possibly 
have  injured  Mr.  Devaughn.  'We  have  no  statute  which 
forbids  the  giving  of  articles  like   these  to  The 

stance  of  the  charge  was,  that   Mrs.   Heath  had   the 
right  to   abandon   the  ownership  and   \  n  of  the 

property  to  the  slave.     When   tl  1  by 

delivery,  the  articles  became  the  property  of  Mr.  De- 
vaughn, the  slave's  ma  .  ;.  in  a  leadi  e  on  this 
subject,  (Fable  v.  Brown,  2  Hill's  Oh.  3&7,)  the  court 
'Tf  one  having  good  title  to  personal  property,  should 
transfer  it  into  the  ion  of  l 
won;.  id;  the  title  would  be  changed,  but  the 
title  and 

;i  v.  Hnntsville   Bank,  1 

b  on  Si.  2;  Williams  v.  Ash,  1  1 

.  13. 

1  he  j udgnmut  ol  the  circa.  d. 


526 SUPREME  COURT 

Orinond  v.  Martin. 


OKMOXD  vs.  MARTIN. 

[BILL  III  BQUITT  FOB  PARTITION    l 

1.  Adverse  pos si  tle.—'Wht  re  a  pur- 

chaser enters  into  ■  i  of  land    under  a  vendor's  bond, 

conditioned  t  title  by  a  specified  day,  which  must  arrive 

before  a  part  of  the  purchase-money    is  due  by  the  terms  of  the 
contract,):)-  a  cannot  be  considered   adverse  to  the 

dor,  until  the  day  appointed  for  the  conveyance  of  the  title  ;  and 
where  such   bond  is  e  by  one  who  professes  to  act  B 

agent  of  several  joint  owners,  for  one  of  whom  he  lias  no  authority 
to  act.  and  is  thus  conditioned  for  the  conveyance  of  tide  by  them, 
r  of  the  purchaser's  possession  is   the  same  as  to  all 
the  owners. 

ion. — The  act  of  February    C, 
"  to  regulate  the  )  partition  suit  i  >n  Acts  1 

ith  the  necessity  of  an  action  at  law,  ti 
tie  a  controverted  question  of  legal  title  arising  in  a  chancery  suit 
for  the  partition  of  lands. 

3.  Liability  ion  for  i  i  '-'.—In  a  • 

eery  suit  for  the  partition  of!  uids,  by  analogy  to  the  rule  p 
by  statute  for  real  I  law,  (Code,  g  2216,)  a  defendant,  who 

holds   possession   under   color  of  title,  in  good   faith,  will  not  be 
charged  with  rent  for  more  than  one  year  before  the  commei 
ment  of  the  suit ;  and  he  will   be  allowed  compensation   for   the 
value  of  improvements  him  during  such  possession,  not 

exceeding  untof  rents  oh  rinst  him. 

Appeal  from  the  Chancery  Court  at  Tuskaloo- 
Heard  before  the  Hon.  J  umes  B.  Clark, 

The  bill  in  this  ca  ie  was  filed,  on  the  12th  February, 
1857,  by  the  children  and  heirs-at-law  of  John  F.  Martin, 
deceased,  against  John  J.  Ormond;  and  sought  a  parti- 
tion of  a  certain  tract  of  land,  of  which  the  defendant  had 
the  possession,  and  of  which  the  complainants  claimed 
to  be  entitled  to  an  undivided  fifth  part,  as  tenants  in 
common  with  him,  together  with  one-fifth  part  of  the 
rents  accruing  during  the  defendant's  possession.     The 


OF  ALABAMA.  627 


Ormond  v.  Martin. 


land  in  controversy  belonged  to  William  A.  Martin,  who 
died  in  Augu  *    tte,  without  wife  or  children, 

and  leaving  live  brothers  and  sisters  as  his  heirs-at-law, 
one  of  whom  was  John  F.  Martin,  the  father  of  the  com- 
plainants. Letters  of  administration  on  the  estate  of  said 
William  A.  Martin  were  granted,  in  September,  1842,  to 
James  M.  Bradford,  who  was  the  husband  of  one  of  the 
decedent's  sisters  and  heirs-at-law.  In  December,  1 
Bradford,  professing  to  act  as  the  agent  of  the  heirs  at- 
law  of  said  William  A.  Martin,  all  of  whom  were  then  of 
full  age,  sold  the  tract  ot  land  now  in  controversy  to  the 
defendant,  and  executed  to  him  a  bond  for  titles,  dated 
the  19th  December,  1S45,  and  conditioned  "to  make  to 
the  said  Ormond,  and  to  cause  to  be  made  by  the  heirs- 
at-law  of  William  A.  Martin,  a  title  in  foe-simple  to  the 
said  lands  by  the  1st  of  July  next."  By  the  terms  of  the 
contract,  $3,000  of  the  purchase-money  was  to-be  paid  by 
Ormond  during  the  then  "  present  season,"  and  the  bal- 
ance in  two  equal  payments,  of  $1577  50  each,  on  t|ie  1st 
January,  1847,  and  1848,  with  interest  from  the  1st  Jan- 
uary, 184G.  Ormond  entered  into  the  possession  of  the 
land,  under  the  contract,  on  the  1st  January,  184<) ;  con- 
tinued in  the  .  ip  to  t lie  commencement  of  this 
suit,  and  erected  valuable  improvements.  John  F.  Mar- 
tin, the  father  of  the  complainants,  died  in  February, 
1840,  having  never  conveyed  his  interest  in  the  lands  to 
the  defendant,  nor  otl  I  the  sale  by  Brad- 
ford; but  all  the  other  heirs  of  William  A.  Martin 
promptly  ratified  the  sale,  and  executed  conveyances  to 
it. 
The  lant  dem  i  the  bill,  for  want  of  equity, 
and  pleaded  I                       ;  limitations  of  ton  years.     The 

ellor overruled  the  d  r,  and,  on  final  hearing 

on  pi  in-  • 

plainants;   holdii  atnte  of  limita- 

t  tained  i  .  that  the  dant 

mde 

a  on  the  Ian 


COURT 


1  v.  Martin. 


the  time  hie  ion  commenced.     E 

icellor's  decree  is  now  assign  ror. 

E.  W.  Peck,  far  appellaut. — 1.  The  demurrer  to  the 
bill  onght  to  have  been  sustained,  because  the  complain- 
ants had    not    established   their  title    at  law. — ; 
Com.  864-5,  note  a;  "Wilkin  v.   Wilkin,   1  Johns,   i 
118;  Phelpa  v.  Green,  3  Johns.  Ch.  302;  Clapp  v.  I3i 
agban,  9  Cowen,  530. 

2.  The  pica  of  the  statute   of  limitations   Jl    tony. 

complete  defense  to  the  suit.     The  defendant  , 
,1  the  land   from  one   who   represented    that  he  was 
authorize  I,  and  whom  he  believed  to  be  so  author- 

ized; and  his  possession,  taken  in  good  faith  under  that 
purchase,  was  under  color  and   claim  of  title,   and   i 
tinned  for  more  than  the   length  of  time  j  d   by 

the  statute  as  a  bar. — Jackson  v.  Smith,  13  Johns.  406; 
Clapp    v.    Bromaghan,   0   Co  wen,    550-5G ;    Jackson    v. 
Wheajt,  18    Johns.  40;  Jackson   v.    Newton,    18  Johns. 
,  v.  Vermilyea,  6  Cowen,  677  ;  Smith  v.  Bur- 
,  9  Johns.  180. 

3.  The  defendant  ought  not  to  have  been  charged  with 
rent  for  a  longer  period  than  one  year  before  the  com- 
mencement 6i  the  suit. — Code,  §  2216. 

4.  If  the  defendant  is  liable  for  rents,  he  is  entitled  to 
Compensation  for  improvements. — Tones  v.  Ward,  10  Ter- 

L69;  McKinley  v.  Holliday,  10  Yerger,  477;  Hot 
ledge,  29  Ala.  4  i 

\V.  Col  ad  S.  F.  Hale,  contra. — 1.  There  was  no 

for  an  action  al  law  to  establish  the  complain- 
ants'title.*— Ilorton  v.  Sledge,  29  Ala.  478;  Delony  v. 
Walker,  9  Porter,  498  ;  6  Dana,  374. 

2.  The  statute  of  limitations  begins  to  run  only   from 
the  commencement  of  an   adverse   possession. — Tillol 
v.  D<  .  Kennedy,  5  Ala.  410;  4  Wash.  C.  C.  3 

The  defendant  went  into  possession  under  a  title-b< 
which  expressly  recognized  the  title  to  be  in  the  hell 
William  A.  Martin  ;   and  his  possession  could   not  p 


OF  ALABAMA. 

Ormond  v.  Martin. 


bly  become   adverse  to   them,  until   the   1st  July,  1846, 
i,  by  the  terms  of  the  contract,  their  title  was  to  be 
conveyed  to  him. — 11  Ohio,  •!")•>. 
bury  v.  Stewart  ■  Ala.  217.     The  defendant's 

"i  not  being  adverse  to  John  P.   Martin  at  the 
time  of  hi*  death,  and  the  complainants  being  infants  at 
that  time,  the  statute  of  limitations  could   not  bar  their 
N"or  are  the  facts  shown  which  are   i  .•  to 

itute  adverse  possession  between  tenants  in  comi 
Benjc  v.  Creagh,  21  Ala.  156;  Harrison  v.  Pool,  16  Ala, 
17-1:  Cotten    v.    Thompson,    25   Ala.    680;  Johnsou   v. 
Toulinin,  18  Ala.  50;  5  Wheaton,  1: 

3.  On  tl  ■  and  improvements,  the  ap- 

pellees rely  ou  Horton  v.  Sledge,  21)  Ala.  478,  andautbor- 

U.  W.  WALKER,  J.— [July  11,  1861.]— 1.  The  land, 
a  partition  of  which  is  sought,  belouged  to  William  A. 
Martin  in  his  life-time,  and  on  his  death  descended  to  his 
heirs,  one  of  whom  was  John  F.  Martin,  the  father  of  the 
complainants.  Ormond  went  into  possession  oi  theland 
about  the  1st  ot  January,  l^lG.  John  F.  Martin  (the 
father  of  the  complainant  inFebruary,  L846.     The 

ion  to  be  determined  is,  whether  tl  n   of 

Ormond,  commencing  ou  January, 

John    F.    Martin,    \  I   in    the  ding 

tuiplaina  at  the  d 

on   was   at  that 
time  .  his  ph  .  of  limitations  must 

fail. 

>  ■ 

9 
and  to  i : 

the 
I 
• 
I        .  with   "nil 

I 


i ._    SUPREME  COURT 

rtin. 

to  Ormond,  and  to  cause  to  be  made  by  the  heir-at-law 
of  William  A.  Martin,  a  title  in  fee-simple  to  the  land  by 
the  1st  July,  1846.  The  answers  of  the  defendant  show, 
that  Bradford  professed  to  be  the  agent  of*  the  Ik  : 
"William  A.  Martin,  all  of  whom   w  .   that    dt 

fendant  believed  that  Bradford  was  authorized*to  Bell  the 
land;  that,  so  believing,  Ik-  made  the  purchase  from  Bra< 
ford,  relying  on  the  power  and  authority  of  the  latter  to 
make  the  sale,  and  that  he  entered  into  the  p  ;i  of, 

an  t  continued  to  hold  the   land,  under  and    by  virtu 
said  purcl  to  all  of  the  heirs  John  F.  Mar- 

tin, it  is  shown  that  Bradford  was  authorized  to  make 
the  sale;  for  they  ratified  the  same,  and  severally  oon- 
i  to  Ormond.  But  the  interest  of  John  F.  Martin 
was  never  conveyed  to  Ormond  ;  and,  under  the  pleadings 
and  evidence,  it  must  be  held,  that  Bradford  had  ^no  au- 
thority to  sell  his  share. 

Where  a  party  enters  into  the  possession  of  land  under 
a  bond  conditioned  to  make  titles  when   the   pure! 
money  is  paid,  his   ]  n,  so  long  as  the   purchase* 

money  remains  unpaid,  is  held  to  he  in  subordination  to 
itle  of  the  vendor;  and  in  an  aetion  by  the  latter  for 
the  recovery  of  the  land,  the  vendee  cannot  claim  the  pro- 
tection of  the  statute  of  limitations,  on  the  ground  of  ad- 
jion  under  color  of  title. — Seabury  v.  Stewart 
fc.Easton,  22  Ala.  207;  McQueen  v.   [vey,  36  Ala. 
But,  when  the  vendee  has  complied  with  the  terms  of  the 
contract  on  his  part,  by  paying  the  purehase-money,  such 
a  bond  is  color  of  title;  and    if  he  thereafter  remain  in 
ession,  claiming  the  land  as  his  own,  for  the  period 
prescribed  by  the  statute  of  limitations,  the  legal  title  will 
be  barred. — McQueen   v.   Iv  Ala.   308,  and  easel 

In  the  present  case,  the  bond  \vlts  not  conditio 
to  make  titles  upon  the  payment  of  the  purchase-money, 
but  by  a  day  named,  which  would  arrive,  according  to 
the  term  of  the  contract,  before  a  part  of  the  purchase- 
money  would  be  due.  The  precise  question,  whether,  iu 
such  a  case,  the  possession  of  the  vendee  can  be  consid- 
ered adverse,  before  the  time  appointed  for  the  convey- 


OF  ALABAMA.  531 


Ormotxl  v.  Martin. 


ance  of  the  title  to  him,  has  never  been  considered  by 
this  court.  But  we  think  that  the  rule  deducible  from 
the  authorities  is,  that,  until  the  time  appointed  for  the 
conveyance  of  the  title,  a  possession  under  such  a  bond 
must  be  considered  as  held  in  subordination  to  the  title 
of  the  vendor,  or  person  whose  conveyance  ia  stipulated 
for.  The  principle  seems  to  be,  that  where  one  enters 
under  an  executory  agreement  for  a  future  conveyance, 
his  possession  cannot  be  deemed  adverse,  until  he  is,  by 
the  terms  of  the  agreement,  entitled  to  the  conveyance, 
■r,  12  Johns.  400;  Fosgate  v.  Herki- 
mer Co.,  12  Bar!.  tper  v. 'Griffin,  12  Geo.  457; 
LaFrombois  v.  J  .  8  Cow.  597;  Briggs  v.  Pro 
14  Wend.  228;  Jacksou  v.  John  n,  74  (91-2;) 
Higgiubothara  v.   Fish  back,  1  Marsh.  506. 

As,  by  the  terms  of  the  contract,  Ormond  had  no  right 
to  demand   a  deed  from   the  heirs   for  whom   Bradford 

authorized  to  sell,  beiore  the  1st  July,  1816,  it  fol- 
lows, under  the  nil  e  abov  .  that  hi-  ion  was, 
until  then,  not  adverse  to  them.     Was  the  case  different 

i  the  heir  whose  agent  Bradford  professed  to  be,  but 
who  never  ratified  t  bom,  we  must,  upon 

this  record,  hold  he  was  not  authorized  to  act  ? 

Every  clement  in  the  definition  of  what  constitul 
title   by  ad\  •  ion.  rau  vise   the 

;  ou  will  not  confer  title  under  thi  lim- 

itations.—Groft  v.  VVeaklan 

m  is  but  a  link  in    the  chain  of  title  by  ad\ 
holding.     It  is  th<  with    an   in;  laim 

list  the  true  owner,  which  render  try  and 

ion  ad\  i  that 

he  holds  in  subord 

•  the 
in   which  all  the 

I 


SUPRE 

irtin'. 


or  continued,  are  tho  only   tests. — Angell  1. 
1,  386,  390,  and  author!!  1.  . 

Now,  it  is  certain  that,  <  >rmoud's   intention 

I  the  chai  -ion,  it  was 

to  all  the  itended  to  hold   ad- 

!y  to  John  P.  Martin,  then  he  intended  to  hold  ad- 
sly  to  ti  lieirs.     His  1 
pied  the  sam  »n  towards  John  F.   Martin  that  he 
occupied              Is  the  other  heirs.     His  intention  was  to 
hold  under  the  bond.     I!''  did  not  claim  to  hold   o 

than  under  the  bond;  and,  as  that  recognized  the 

as  in   the  heirs,  hie  -ion  must  have  been   in 

subordination  to  their  title.  Where  the  very  instrument 
under  which  one  holds  recognizes  the  title  to  the  land 
as  in  another  person,  ii n *1  stipulates  for  a  future  con 

of  the  same  to  the  possessor,  it  is  impossible  in  the 
nature  of  things  that  the  latter  can   intend   to  hold   ad- 

sly  to  the  person   whose  title  he   thus  recognizes. — 
Authoriti  ra. 

The  precise  question  we  ar  .  was  considi 

in  the  case  of  Stamper  v.  Grim'  i,  (20  Geo.  -1::.)  where  it 
Was  held,  that  one  who  holds  land  under  a  bond  for  titles, 
in  the  name  of  the  true  owner,  docs  not,  so  long  as  the 
purchase-money  remains   unpaid,  hold   adv.  o  the 

true  owner,  even  though  the  bond  be  a' forgery  ;  provided 
ii  to  he  the  he. id   of  the  true   owner.     The 

.mentis  put    in  so   striking  a    light  by   Denning,  .1., 
who  delivered  the  opinion  of  the  court,  that  we  transcribe 

rtion  of  it. 
ili'  available  under  the   statute  of  lim- 

itations, has  to  ho  adverse  to  the  title  of  the  true  owner. 
ion  of  no  person  can  be  adverse  to  the  title  of 
the  true  owner,  unless  the  person  intends  it  to  he  ad'. 

No  one  can  intend  a  possession   to    he  .;d- 

•  to  the  title  of  the  true  owner,  which  possession  he 
considers  hin  holding  under  the  true  owner.    1/ 

one  who   holds  his   ;  on   under  a  bond  for  ti 

le  by  the  true  owner,  must,  if  the  purchasi 
remains  unpaid.,  consider  himself  as  holding  under  the 


OF  A  LA  RAM  A. 


Oi-nioii'l  v.  Martin. 


true  owner.     The  re  I'm-.',  no  one  who  bo  holds,  can  intend 
his  |  i  to  bo  adverse  to  the  title  of  the  true  owner; 

and  therefore,  the  po  one  who  so  holdi 

adverse  to  that  title.     So  equally   every   one   who  holds 
his  pi  i  under  a   bond  tor  titles,  not  made  by  the 

true  owner,  but  which  he  believes  to  hav  rnude  by 

the  true  owner,  and   not  by   some   man  personating  the 
trine  owner,  must,  purchase-money  remains  unpaid, 

ider  himself  as  holding  under  the  true  owner.     That 
be  his  thought,  if  he  believes  the  bond  to  be  genuine, 
whether  it  be  genuine  or  not.     Therefore,  no  one  \vl 
holds  can  intend  his  |  adverse  to  the  title 

of  the  tru  r;  and   therefore,   the  possession   of  no 

one.  who  so  holds,  is  adverse  to  the  possession  of  the  true 
owner.      In  these  two  sorts  of  possession,  the   result  is  ' 
precisely  the  same,  whether  the  bond  be  spurious  or 
nine:  because,  in  the*   two  sorts  of]  >n,  the  i 

of  the  holder  is  the  same.      Iti  each,  he   intends  his  ]>os- 
ion    to  1  ion    under  the   true   owner;   and 

intending  this,  he   cannot  intend  tl  sssion   to  be 

adverse  to  the  true  owner's  title.  *  * 

<4To  illustrate:  C.  is  the  owner  of  a  lot  of  land  ;  A.  goes 
to  B.,  and  -avs  to  him.  that  he  is  the  agent  for  C. 
the  lot,  and  sells  the  lot  to  B.,  with  the  understanding  that 
the  title  is  to  be  made  by  C,  when  the  purchase-money 
shall  have  been  paid  by  B.,  and  that  he  is  to  get  from 
for  B.,  C.'s  bond  to  tl  ;  A.  brings  a  bond  to  B.,  with 

1  as  a  bond  of  l  , 

bond  is  a  forgery;    B.  ta  it,  —  B.  d 

d  to  hold  adversely  to  C,  b<  be  thinks  he 

ilding  under  C;  and  so  thinking,  it  cannot,  be  sup- 
posed thai  I '." 

rtained  I  ion  ol   ( 

f  Johp    l'\    Martin. 
to  tb  ad  ford   was  author- 

i  \vn, 

.  Marti; 
wine 

it. 


SUPREME  COURT 

Borum  v.  King's  Adm'r. 


•_'.  The  rule  of  law  which  requi  action  at  law 

settle  a  controverted  question  ^l'  legal  title,  arising  in  a 
chancery  proceeding  tor  the  partition  of  land,  is  char 

statute  in  this  State  ;  and  it  is  not  now  indispensable 
that  such  suit  should  be  had.— Acts  '57-8,  p.  294. 

3.  Section  2216  oi   the  Code  provides,  that  "persons 
holding  |  »r  of  title,  in  good  faith,  are 

not  responsihle  for  damages,  or  rent,  for  more  than  one 
year  before  the  conm  ent  of  the  suit."     Although 

this  section  is  part  of  a  chapter  which  relates  to  real  ac- 
tions in  courts  of  law,  we  think  that  a  court  of  chancery 
should  apply  to  a  case  like  this,  which  is  in  the  nature  of 
an  equitable  ejectment,  a  rule  analogous  to  that  which 
tatute  prescribes  for  the  action  at  law.  llcnee,  we 
think  that  the  chancellor  erred,  in  charging  the  appellant 
with  rent  for  more  than  one  year  before  the  commence- 
ment of  the  suit.  The  appellant  is  entitled  to  the  value 
of  the  improvements  made  by  him  after  the  1st  July, 
1840,  at  which  time  the  bond  under  which  he  ent 
became  color  of  title  ;  hut  it  .must  be  borne  in  mind,  that 
he  can  in  no  event  be  entitled  to  compensation  lor  im- 
provements made,  beyond  the  rents  charged  against  him. 
Horton  v.  Sledge,  29  Ala.  498,  and  authorities  there 
cited. 
.    Decree  reversed,  and  cause  remanded. 


BOKTM  vs.   KING'S  ADM'R. 

[bill  in  equity  to  enforce  voluntary  executory  trust.] 

1.  Consideration  of  deed. — Love  and  affection  for  a  grandson  is  not  a 
valuable  consideration  for  a  deed. 

2.  Transfer  of  note  ;  presumed  existence  of  conwion  law  in  sister  State. — 
By  the  common  law,  (which  will  be  presumed,  in  the  absence  of 
evidence  to  the  contrary,  to  prevail  in  a  sister  State,)  to  transfer 


OF  ALABAMA. 


in  v.  King's  Adm'r. 


the  I    ;al  title  to  a  prom  ithout  delivery,  it  is  n 

y  that  there  should  1  cent  on  the  note  itself,  or  on 

her  paper  attached  to  it. 
3.    Vo  ■'.  —  A  court  of  equity  will  not 

eni  mtororhi  itative,  a  purely 

voluntary  executory  trust  in  favor  of  a  grand-child. 

Appeal  from  the  Chancery  Court  of  Macon. 
rd  before  the  Hon.  James  B.  Clare. 

Tin:  bill  in  this  case  was  filed  by  William  B.  Borura, 
against  the  personal  representative  of  his  maternal  grand- 
father, William  King,  deceased  :  and  sought  to  enforce 
the  s] tecific  cutiorj  of  a  trust,  created  by  a  deed  of 
which  the  following  is  a  copy: 

"  State  of  Georgia,  1  Know  all  men,  by  these  pres- 
Ilarris  county,  /cuts,  that  I,  William  King,  of  the 
State  and  county  aforesaid,  for  and  on  account  of  the 
relationship  and  love  that  I  have  for  my  grandson,  Wil- 
liam Benjamin  Borura,  do,  by  these  presents,  give  and 
convey  unto  my  grandson  one  note  of  hand,  for  the 
amount  of  $475,  on  Benjamin  F.  Borum,  the  father  of 
my  grandson,  due  the  30th  November,  1859 ;  and  I. 
give  to  my  said  grandson  the  further  sum  of ! $1, 000,  law- 
ful money,  to  be  paid  to  the  said  William  B.  Borum  at 
my  d<ath,  or  within  twelve  months  after,  by  my  admin- 
istrators Bat  tie'  note 
and  money  abov  a  the  following  con- 
ditions and  •  ns — to-wit:  that  if  the  said  William 
B.  Borum  should  di< 

he  has  a.  legit  in 
child    or    children     I  and    inherit    it,    the 

of  money,  with    the  int 
.  into  tin 
J 

hildren — to  them.      "  And  I 

dol>\  |  appoint 

I  nt,  and  guardian  of  D  and- 

son,  to  manage  and  control  the  before-mentioned  sum 


SUPREME  COURT 

Borum  V.  7\iiiL''-<  Adin'r. 


of  money,  to  the  best  advantage,  for  m\ 
[he]  may,  ifhe  thinks  proper,   pay  the  ml 
money  to  the  clothing  and  educating  of  my  said  ^rand- 
sop.     It  is  no  f,  that  the  money  should  in 
no  wise  be  paid  into  the   hands  of  Benjamin   F.  Boru#n, 
the  father  of  my  grandson,  but  that  a  guardian   be  ap- 
pointed  by  the   court   from   out   of  the  relations  of  my 
grandson's  mother,  which  guardian  may  act  agreeably  to 
the  instructions  above  s]  for  Harvey  King.     More- 
over, if  I  should  die,  and  make   no  will,  this  gift  to  my 
grandson  is  to  be  considered  in  full  of  all  of  my  grand 
and  is   to  forever  prevent   him,   or  his   father,   from  any 
claim  on  my  estate.     In  witness  whereof,  I  have  hereunto 
set  my  hand   and  seal,  this  1st   December,  A.  D.   1840." 

"William  Kino,  [seal.]" 

"Wm.  B.  Pry  or, 

"Osborn  Crook." 

The  bill  alleged,  that  this  deed  was  executed  in  Geor- 
gia, where  the  grantor  then  resided,  was  delivered  by  him 
to  the  complainant,  "so  far  as  the  circumstances  of  the 
case  would  admit,  and  caused  to  be  spread  upon  the 
records  of  the  proper  office  ";  that  the  grantor  afterw 
collected  from  Benjamin  F.  Borum  the  money  due  on  said 
note  mentioned  in  said  deed,  but  never  paid  any  part 
of  it,  or  of  the  §1,000  mentioned  in  said  deed,  to  the 
complainant ;  that  said  grantor  removed  to  Macon  County, 
Alabama,  in  theyear  1845,  and  there  died  in  October,  1 
that  letters  of  administration  on  his  estate,  cum  testamenta 
annexo,  were  duly  granted  to  the  defendant,  who  ref 
to  pay  complainant  any  part  of  said  moneys;  that  Harvey 
King  died  in  the  year  1856,  and  that  the  complainant 
was  o\  er  twenty-one  years  of  age.  The  prayer  of  the  bill 
was  for  an  account,  a  money  decree  against  the  adminis- 
trator for  the  amount  which  might  be  found  due  to  the 
complainant,  and  general  relief.  The  chancellor  dis- 
ied  the  bill,  on  motion,  tfor  want  of  equity;  and  his 
decree  is  now  assigned  as  error. 


'  I 


OF  ALABAMA.  537 


Boium  v.   Kind's  Adin'r. 


Geo.  W.  Gunn,  with  W.  P.  Chilton,  for  appellant 

CLofTON  &  Ligon,  contra. 

A.  J.  WALKER,  C.  J.— [July  10,  1861.]— We  think 
it  is  clear  that  the  decision  of  the  chancellor  was  correct. 
Love  and  affection  for  ■  grandton  is  not  a  valuable  con- 
sideration, as  we  decided  in  Kinnebrew  v.  Kinnebrew, 
!.'..  628.  The  deed  of  William  King  was,  therefore, 
purely  voluntary.  The  deed  did  not  convey  the  legal 
title  to  the  note  therein  described.  Supposing  the  com- 
mon law  to  have  prevailed  in  Georgia,  where  the  deed 
was  executed,  the  note  not  having  been  delivered,  an  en- 
dorsement on  the  paper  itself,  or  at  least  ou  one  attached 
to  it,  was  necessary  to  transfer  the  legal  title. — Hall  v. 
M.  Bank  of  Mobile,  6  Ala.  TGI.  We  have,  then,  so 
far  as  the  note  is  concerned,  "an  instrument  purporting 
to  be  a  conveyance,  or  assignment  of  property,  *  *  * 
but  which  does  not  operate  to  divest  the  grantor  of  the 
legal  estate  (title);"  and  which,  therefore,  does- not 'con- 
vey a  perfect  executed  trust.  The  execution  of  such  an 
instrument,  it  beingpurely  voluntary,  will  not  be  enforced 
in  equity  against  the  party  himself,  or  against  his  rep- 
resentatives after  his  decease. — Hill  on  Trustees,  187; 
Ellison  v.  Ellison,  6  V<  .  1  Lead.  Cas,  in  Eq. 

167,  and  notes  by   Hare  &.\Vallace;  2   Storj  Jur. 

i  a  ;  Crompton  v.  Va  Ala.  -2.3!>:    Kinnebrew  v. 

Kinnebrew,  supra,     g  i  far  as  tb<  and  dollars  men- 

tioned in  the  do  ed,  if  the  instrument  can  be 

operative    inter  vivos,    it    is  settled    in  Kinne- 
brew v.  Kinnebr  he  trust  will  not  be  en- 
d  in  equity.      V\               ;o  the  r<  and  author- 
1   in  the  case  lasl  <>n  this 
point.     VVe  deem  it  pro]              mark,  that  the  ar 

authorities  of  thi  llor  ha-  i  aa  to 

sion  of  this  case,  and,  indeed,   bave  left   us  but 
little  to  do  save  to  concur  in  his  c 
Affirm< 


35 


£38       .  SUPREME  CO 


v.  Mct'ampbell. 


DAVIS  vs.  McCAMPBELL. 

[PETITIO.N  WUN'i  AFTER  FINAL  JUDGMENT  AT   LAW.] 

• 

1.  Security  for  cost*  of  appeal. — On  appeal  from  a  judgment  of  the  cir- 
cuit court,  dismissing  a  petition  for  rehearing  after  final  judgment, 
(Code,  \\  2407-15.)  the  surety  on  the  supersedeas  bond,  being  a 
party  defendant  to  the  judgment  appealed  from,  cannot  become  a 
surety  for  the  costs  of  the  appeal;  and  if  there  is  no  other  surety 
for  the  costs,  (Code,  \  3041.)  the  appeal  will  be  dismissed  on  moti  itt. 

2.  lie  hear  i:  '. — Section 
2407  of  the  Code,  authorizing  a  rehearing  after  final  judgment  at. 
law,  on  account  of  a  lost  receipt  or  discharge  of  the  claim  sued 
on,  which  has  since  been  found,  does  not  apply  to  a  case  where  the 
action  is  founded  on  a  promissory  note,  and  the  receipt  only  shovs 
a  payment  of  the  original  consideration  of  the  note. 

•;e,on  account  of  surprise,  incident,  mistake,  or  fraud. — Where  the 
defendant  in  an  action  at  law  is  required  by  tho  court,  as  the  con. 
dition  of  a  continuance,  to  confess  a  judgment  for  a  part  of  the 
pi  dntiff'fi  demand,  and  confesses  judgment  accordingly,  lie  cannot 
itain  a  rehearing  as  to  the  confessed  judgment,  (Code, 
§  2408,)  on  the  ground  of  surprise,  accident,  mistake,  or  fraud. 

Appeal  fro  hi  the  Circuit  Court  of  Calliouu. 
Tried  before  the  Hon.  S.  D.  Hale. 

TnE  original  action  in  this  case  was  brought  by  Jai 
A.  MeGampbell,  against  J.  L.  Davis,  and  was  founded  on 
the  defendant's  promissory  note  for  §340  37,  dated  the 
27th  April,  1858,  and  payable  one  day  after  date.  The 
defendant  pleaded  not  guilty,  want  of  consideration,  failure 
of  consideration,  fraud  in  procuring  tho  execution  of  the 
note,  and  set-oft'.  At  the  May  term,  1859,  a  judgment 
Wae  rendered  against  the  defendant,  by  confession,  for 
$175;  and  the  cause  was  continued  as  to  the  residue  of 
the  jplaintifTs  demand.  On  the  3d  September,  lb'59,  the 
defendant  filed  his  petition,  duly  sworn  to,  asking  a 
supersedeas  of  the  execution  which  had  been  issued  on  the 
confessed  judgment,  and  a  rehearing  of  the  cause;  and 


OF  ALABAMA.  539 


Davis  v.  McCampbell. 


executed  a  supersedeas  bond,  as  required  by  the  statute, 
With  M.  J.  Turnloy  as  his  surety.  The  petition  alleged, 
that  the  note  was  executed  by  tlie  defendant  as  the  ad- 
ministrator of  the  estate  of  one  William  Mallory,  deceased, 
and  was  given  for  the  amount  of  an  open  account,  which 
the  plaintiff' claimed  to  hold  against  said  Mallory;  that 
one  item  of  said  account  was  $180  60,  paid  by  plaintiff  to 
one  McNutt  on  the  18th  October,  1853,  and  another  item 
-was  #71  63,  taxes  paid  by  plaintiff  in  November,  1853, — 
both  of  said  payments' having  been  made  by  plaintiff, 
as  he  claimed,  lor  said  Mallory  in  his  life-time;  that  the 
defendant,  believing  he  had  a  good  defense  against  the 
note,  asked  a  continuance  of  the  cause  at  the  trial  term, 
but  was  unable  to  make  a  satisfactory  showing,  and  was 
therefore  required  by  the  court  to  confess  a  judgment,  as 
above  stated,  for  a  part  of  the  plaintiff'!  demand,  as  the 
condition  on  which  a  continuance  would  be  granted  as  to 
the  residue  :  and  that,  after  the  rendition  of  this  judg- 
ment, he  hail  found  receipts  showing  the  previous  pay- 
I  of  the  two  items  above  mentioned,  whieh  receipts 
•  lost  or  mislaid  at  the  time  the  judgment  was  ren- 
dered. The  court  having  overruled  a  demurrer  to  the 
petition,  the  plaintiff  in  the  judgment  filed  a  plea,  deny- 
he  truth  of  the  facts  therein  alleged;  and  issue  wa3 
joined  on  i^ud  plea. 

On  the  trial  before   the  jury,  as  the  bill   of  exceptions 

shows,  the  petitioner  offered   in    evidence  the  plaintiff's 

Inswers  to  int<  rrogatories  under  the  statute,  the  receipts 

ioned  in  th  n,  and  testimony  tending  to  shew 

the  judgment  \\  1  under  the  circumstai 

1  in   the   petition.     Tie  ,  it  which  was  the  ori- 

consider;  tion  of  the  note,  was  made  an  exhibit  to 

dntiff,  and  also  to  one  of  the 

jinal  action  ;  and  while  said 

Elbcount  contain.  :ainst  the  defendant  for  the 

'ems  a  him"  credits  for  two 

ry  nearly  corresponding  with  those  items,  both  in 

d  amounts.    The  petitioner  d  several  ex- 

ious  to   the   rulings  of  the  court  on  the  evidence, 


.i:\ik  « 

. 

jury,  that  th 
ntiff  ill   tlic  juil  to  which  cl 

I 
dismissed  the  petition  ai  1  rcud< 

and  his  i 
■ 
nd  tlii-  judgmenl  t  with  the  ruling  j  of  the 

1  on  the  pl<  and  cvi 

I.  on   tl 
;  ir  wan! 

M.  .1.  TuitSLET,  r<>r  appellant. 
M  \irnv,  If 

STONE,  J.—  [.Jui:  b  a  motion  1 

made  in  this  the  appeal,  for  waul 

rity  "  feel  bound  I  d  r<»  it.     Tl 

taken  from  tho  judgment  of  the  ci  >urt,  disti 

ini: I  That  judgment  was  rend  linst 

.1.  \j.  Davis,  and   M.  J.  Turnley,  his  surety  on  li 

md  :  the  ju  I  both  of  \  hemi 

M.  J.  Turnley  is  the  only  surety  for  costs  of  the  appeal  to 

irt.     Being  a   party   to  the  judgment    appei      1 

from,  tl:  tiou  by  him  of  the  obligation  intended  as 

arity  fo  t  a  compliance  with' section  ', 

of  tl  There  is  i  \\  for  costs,  and  the  ap- 

peal urn 

The  appeal,  however,  may  be  amended,  or  a  new  appeal 
cuted,  as  two  years  have  not  elapsed  since 
the  judgment  appealed  from  was  pronounced.     We  will, 
therefore,  <1  the  merits  of  1 1 

We  <lo  not  think  t  he  case  made  by  the  pel  ition  for 
within  section  2407  of  the  <  That  sec- 

tion provides   for  a  written  release  or  discharge  of  th? 
'■Ian,'  It  contemplates  a  ease   where  the    rc'< 

operate!  directly  on  tin'  cause  of  action  which  is  the  snb- 

dt.     It  does  not  reach  a  case  like  the  | 
where  the  lost  paper  only  tends  to  show  that  the  note, 


OF  ALA  P.  AM  A.  Ml 


apbell. 


which  is  the  foundation  of  the  action,  was  executed  in 
mistake,  and,  to  a  certain  extent,  withoe  lion. 

If  the  papera  relied  on  in  the  present  application  are 
worth  anything,  their  value  consists  in  tie-  fact — no!  that 
they  are  a  release  or  discharge  of  the  claim  ou  which 
judgment  was  rendered — hut  tie.  claim  never  had 

a  valid   existence.      For   su<  -eetion    2407   of   the 

Code  makes  no  provision. 

[3.]  The  appellant's  case,  then,  must  stand   or  tall   on 
section  1' Pis  of  the  Code.     That  section  (rives  a  right  to 
a  rehearing,  at  any  time  within   four  mouths  alter  judg- 
when  a   party  hi  row   making 

his  defei  urprise,  accident,  mistake,  or  fraud,  with- 

out fault  on  his  part."     The  judgment  m  thi 
was  rei   lered  on  confession.     To  relieve  himself  from  this 
•wledgment  of  the  justice  of  the   claim,  the 
appellant  shows  in  i  bad  made  application 

to  the  circuit  court  I  ,        . .;  the  suit  againsl 

him.  and  that  the  circuit  coart  required  him,  a-  ition 

on  which    he    would  grant  the  continuance,  to   cot 

r  one  hu  dollars,  part 

of  the.  claim  sued  on-     This  plain  feet  provi  the 

Qtinuani 
to  thai  sum,  to  I  ;.     rJ  he  appellant  tl. 

t.      This 
' 

•  :"''1  t:  of  it  in  a 

A'e  hold 

by  a  j  •  d  under  the  circui 

I,  the  party  eatops  himself  from 

i ;  i  h  I  m  i 

i  by 

on  the  sa  j{, 


SUPREME  COURT 

Autr  v  v.  Ajurrey's  Adm'r. 

claims  a  credit  of  ?71  63,  taxes  paid;  he  rece  :edit 

of  870. 
Appeal  dismissed. 


AUTREY  vs.  AUTREY'S  ADM'R. 

[  FINAL  SETTUMKNT  ANI>    DISTRIBUTION  Or  DBCKDBNT'B  ESTATK.J 

s, — Money,  or  property,  given  by  a  parent  to  a  child, 
will  be  presumed  to  have  been  intended  as  an  advancement,  unless 
such  pr<  id  by  the  nature  of  the  gift,  or  by  other 

evide  ving  that  it   was  intended,  as  an  absolute  gift.    To 

show   that  an  absolute  gift,  and  not  a  mere  advancement,  was  in- 

mtemporaneons  declarations  of  the  parent  are  admis- 
sible evidence  for  the  child ;  '•and    when  the  question  arises  be- 
tween distributees,  there  is  much  reason,  as  well  as  authority,  in 
support  of  the  proposition,''  that  the  subsequent   declaration 
the  parent,  <•  .■•.  of  his  intention  in  parting  with  the  prop- 

erty, a;v  .•  >  for   the  same  purpose.     But  in   this 

ig  the  admissibility  of  such  subsequent  declarations, 
And  considering  them  in  connection  with  the  other  tacts  proved, 
they  are  not  sufficient  to  show  that  the  primary  court  erred  in  de- 
ciding that  the  property  was  inl  Ivancement. 

Appeal  from  the   Register  in  Chancery   at  Claiborne, 
sitting  as  Probate  Judge  for  Monroe  county. 

In  the  matter  of  the  final  settlement  and  distribution 
of  the  estate  of  Alexander  Autrey,  deceased,  on  the  sug- 
gestion of  the  administrator,  that  the  decedent  had  made 
advancements  in  his  life-time  to  Anonymous  I).  Am 
his  son,  which  ought  to  be  brought  into  hotchpot.  Op 
the  trial  (»f  the  issue  joined  on  this  suggestion,  as  the  hill 
of  exceptions  states,  "the  only  evidence  adduced  waa  the 
following  " : 

1.  The  answer  of  said  Anonymous  B.  Autrey,  on  oath, 
as  required  by  the  act  of  February  8,   1858,  "to  better 


OF  ALABAMA.    __  543 

Autroy  v.  Autivv's  .Vlm'r. 


ascertain  advancements,"  &c.  1857-58,  p. 

305,)  in  the  following  words:  "Affiant  3ays,  that  his 
father,  Alexander  Autrey,  gave  him  the  following  de- 
scribed property,  to-wit :  In  the  year  1828,  household  fur- 
niture, valued  by  said  Alexander  Autrey  at  the  time  of 
the  gift  at  $25;  one  Albert,  valued  at,  and  worth 

$400;  in  the  year  182t,  or  1822,  one  colt,  worth  $6;  in 
the  year  1851,  one  negro  man,  Dick,  valued  by  said  Alex- 
ander Autrey  at  $1,000;  and  in  the  year  1854,  in  cash, 
$1,980.      The  above   is  the  only   property  affiant 
received  from  his  father,  as  a  gift  or  advancement.  There 

property  given  by  said  Alexander  Autrey  to  all  his 
children  ;  but  affiant  cannot  positively  say;  whether  the 
property  wassogivi  n  as  an  advancement,  to  be  accounted 
for  on  the  final  settlement  of  the  estate  of  said  Alexander, 
or  was  intended  as  a  gift  to  said  children." 

2.  The  testimony  of  Parthenia  B.  Autrey:  "Alexan- 
der Autrey  in  his  life-time  gave  to  Anonymous  B.  Au- 
trey, his  son,  on<  boy,  Albert;  one  negro  woman, 
Oily;  also,  one  }Toung  horse,  five  or  six  head  df  cattle, 
four  or  five  sheep,  one  bed  and  fumitute;  worth,  in  all, 
about  $1-00.     Said   property  was  given   about   the 

.     lie   also  gave   to  said    Anonymous,    in    the 

,  a  likely  negro  man,  named  Dick  Hunter,  worth 
about  $1,000,  and    $2,000   in  gold  :   and  he  .  ,e  to 

Anonymous,  in 
informed  by  said  A  r  and  Anonymous  An;  rev." 

8.  '.  ny  of  Willie    Darby:  "Anonymous  B. 

Autrey  told  witness,  in  1864,  that  Alexander  Autrey  let 
him  huv.  )t  given   it  to  him  at  that   tii; 

•  then  lived   in    ';  i   by 

him." 
4.  The  t<  stimony  of  R.  T.   Ba  Au- 

told  witn<  -  .  ;n  ion   had   at   his  iir* 

that,  he  bad  i  ty  to  I 

The  W'oi    . 

id  that  that  ;  ick  into  my 

cstat 
to  live.'     In,.  id    thai 


>44 SUPREME  COURT 

Autrey  v.  Autrey's  Adm'r. 


made  a  will,  and  showed  it  to  witness,  and  witness  read 
it.  'Now,  the  property  in  my  possession  is  all  that  is 
included  }n  that  will.  I  have  named  no  property  in  that 
will,  only  the  valuation  of  it,  which  is  $12,000  worth  of 
negro  property  for  my  living  children';  §0,000  for  < 
of  his  children,  if  that  much  was  on  hand,  in  money.  He 
then  said,  there  would  probably  be  thirty-live  or 
negroes  left  for  his  wife,  during  her  life;  and  at  berdt  ath, 
he  wanted  those  negroes  all  divided  equally  among  his 
grandchildren  included.  This  conversation 
was  in  1S53,  or  1854.  Witness  heard  said  Autrey  repeat 
the  same  on  other  occasions  subsequently,  and  heard  him 
say.  thajt  what  he  had  given  his  children  was  theirs,  and 
not  his;  that  he  had  given  it  to  them  as  a  present;  that 
they  had  helped  him  to  make  it,  and  [he]  wanted  to  see 
them  enjoy  it  while  he  lived  ;  and  that  if  they  spent  it  he 
could  not  help  it.  He  often  told  witness,  that  lie  never 
wanted  the  property  lie  had  given  to  them  to  come  hack 
into  his  i  r  to  he  divided  among  his  heirs;  this  was 

subsequent  to  the  first  conversation  spoken  of.  Witness 
has  heard  him  say  the  same  thing,  in  substance,  ten  or 
twelve  times,  more  or  less."  (Cross-examination.)  " 
Autrey  never  named  any  property  he  had  given  to  any  of 
his  children  ;  but  he  told  witness,  that  he  had  given  more 
property  to  his  sons,  than  to  his  daughters.  He  never 
told  witness  what  his  intentions  were  when  he  gave  oft' 
his  property  to  his  children.  In  the  conversations  alluded 
to,  witness  can't  say  that  said  Autrey  used  the  language, 
'I  never  intended,'  or  lI  don't  intend';  but  thinks  he 
said,  '  I  don't  Intend. ' 

5.  The  testimony  of  A.  L. 'Autrey,  a  son  of  Anony- 
mous B.  Autrey  :  "  About  November,  1855,  I  went  to 
live  with  my  grandfather,  Alexander  B.  Autrey,  and  re- 
mained with  him  until  his  death.  During  that  time,  he 
tently  told  me,  that  he  made  advancements  of  prop- 
erty to  his  different!  children,  but  had  always  intended 
such  advancements  as  absolute  gifts,  and  did  not  wish  or 
intend  that  they  should  ever  be  brought  up  on  the  final 
disposition  of  his  estate.     I  have  heard  him  say,  that  he 


OF  ALABAMA.  545 


Autrey  v.  Autrey's  Adm'r. 


had  loaned  a  negro  girl  to  Anonymous  B.  Autrey,  to 
keep  until  he  (said  Alex.)  could  get  a  negro  boy  for  him  J 
that  said  negro  girl  died  in  the  possession  of  said  Anony- 
mous, but  belonged  to  him  (said  Alex.)  at  the  time  of  her 
death,  and  he  did  not  hold  said  Anonymous  accountable 
for  her  value."  (Cross-examination.)  "I  would  further 
state,  that  I  now  recollect  of  no  person  being  present 
whensaid  Autrey  and  myself  had the  conversations  men- 
tioned above;  but  they  were  repeated  frequently  while  I 
was  with  him.  He  also  said,  that  he  made  a  will  at  one 
time,  but  had  destroyed  it :  and  that  he  did  not  wish  his 
property  to  be  divided,  or  taken  from  those  to  whom  he 
had  given  it,  if  he  should  die  without- making  another 
will.  I  believe  Oily  was  the  name  of  the  girl  which  said 
Autrey  said  he  had  given  to  said  Anonymous.  I  do  not 
know  her  value." 

" Thereupon,  the  said  Anonymous  B.  Autrey  moved 
the  court,  that  he  be  not  charged  with  any  advancements; 
but  the  court  overruled  his  motion,  and  held  that  he  was 
chargeable  with  $6,300  as  an  advancement  from  his  father, 
which  he  should  bring  into  hotchpot";  and  this  ruling 
and  decision  of  the  court,  to  which  an  exception  was  re- 
served by  the  said  Anonymous,  is  now  assigned  as  error. 

Torrey  &  Lbslih,  for  appellant. —  The  evidence  set  out 

in  the  record  elearly  shows,  that,  the  court  below  erred  in 

charging  the  appellant  with  $6,300  as  an  advancement. 

As  ip  i  obji  ction  was  made  to  any  portion  of  the  evidence, 

dmissibility  was   thereby  conceded,  and  cannot  now 

be  questioned,     As  to  the  admissibility  of  the  decedent's 

Subsequent  declarations,   if  the  court  should    hold  that 

that  can  be  here  considered,  the  appellant  relies 

on  the  following  authorities  :  Phillips  v.  Chappell,  10  Geo. 

I6 ;  £  1  v.  Smith.  appeals 

$8  Penn.  St.  (11  Han  .  Johnson  v.  Belden,  2fr Conn. 

Went/,  v.  Dehai  \  K.  312;   Butli  rv.  Mer. 

.  14  Ala.  777;  Mitchell  'v.   Mitchell,  8  Ala.  421- 


r 


.  W.  '. — The  decree  of  the  court  below  is 


546  SUPREME  COURT 


A u trey  v.  Autrey's  Adm'r. 


fully  sustained  by  the  evidence.     The  subsequent  d 
rations   of  the  intestate,  if  admissible  for  any  pur] 
are  not  sufficient  to  outweigh  the  other  facts  in  proof; 
and  they  are  not  competent  evidence. — Rumbly  v.  St 
ton,  24  Ala.  712  ;  Martin  v:  Hard,  sty,  27  Ala.  45S  ;  Gil- 
lespie v.  Burleson,  28  Ala.  552;  May  v.  May,  28  Ala. 

R.  W.  WALKER,  J.— [July  3,  1861.]— The  rule  is, 
that  when  either  money  or  property  is  given  by  a  parent 
to  bis  child,  it  will  be  presumed  to  be  an  "advancement" 
under  the  statute,  unless  the  nature  of  the  gift  repels 
such  presumption;  as  in  the  case  of  trifling  presents, 
money  expended  for  education,  &c.  But  the  presump- 
tion, that  property  given  by  a  parent  to  his  child  was  in- 
tended as  an  'advancement,'  may  be  repelled  by  evidence 
showing  that  a  gift,  aud  not  an  advancement,  was  in- 
tended :  and  for  this  purpose,  the  contemporaneous  dec- 
larations of  the  parent  are  admissible. — Mitchell  v.  Mitch- 
ell, 8  Ala.  414,  421  ;  Butler  v.  ?Ier.  Ins.  Co.  14  Ala.  777. 
And  where  the  question  aris.'S  between  distribul 
whither  property  received  by  one  of  them  was  intended 
as  an  'advancement,'  or  as  a  pure  gift,  there  is  much  rea- 
son, as  well  as  authority,  in  support  of  the  proposition, 
that  the  declarations  of  the  intestate,  made  subsequent 
to  the  delivery,  expressive  oi  his  intention  in  parting  with 
the  property,  are  admissible  in  favor  of  the  child  to  whom 
it  was  delivered. — Phillips  v.  Chappell,  1C  Geo.  10;  Sher- 
wood v.  Smith,  28  Conn.  Rep.  516;  Lawson's  appeal, 
2.'5  Penn.  St.  Et,  85;  Johnson  v.  Belden,  20  Conn.  322; 
2  Pbill.  Ev.  (C.  &.  Jl.'s  notes,  edit,  of  1850,)  705. 

We  need  not,  however,  decide  this  question  in  the 
present  case;  for,  assuming  the  admissibility  of  all  the 
evidence  set  out  in  this  record,  we  are  not  so  well  con-, 
vinced  that  the  register  erred  in  his  conclusion,  that  we 
are  willing  to  reverse  his  decree.  The  appellant  tiled  his 
answer  to  the  allegation,. as  required  by  the  act  of  Feb- 
ruary 8,  '68,  (Acts  '57-8,  p.  305);  and  in  that  he  states, 
that  in  1828  he  received  "household  furniture,  valued 
by  said  Alexander  Autrey  at  the  time  of  the  gift,  at  §25, 


OF  ALABAMA. £tt* 

Autrey  v.  Autrev's  Adm'r,  j? 


and  one  negro,  Albert,  valued  at  and  worth  $400;"  ao/f 
that  in  1851  he  received  "one  negro  man,  Dick,  valued  by 
said  Alexander  Autrey  at   $1,000."     The  fact  thait.tjjfe 
property  Wtt9    given   and    received  at    a  specified   \ftlu£, 
seems  to  indicate   that  it  was    intended  as   an    advance- 
ment, and  not  as   a  pure   gift.     At  any   rate,   it  ia^cleSr 
from  the  appellant's  answer,  that  the  alleged  intent/ion f>f 
the  intestate,  that  the  property  should  be  held  a^'jp  gift, 
and  not  as  an  advancement,  was  not  communicated  Jo  the 
son,  cither  when  the   property  was  delivered,  or  at  any 
time  afterwards.      This  ■■•circumstance,  we  think, •raises  a 
Strong  presumption  against  the  existence  of  such  .aiy.in-         r 
tention.     The  only  evidence  to  repel   this  presumption 
consists   of  the  subsequent  declarations    of  the  pa»ent, 
testified  to  by  two  witnesses,  one  of  whom  is  the  son  of 
the  appellant.     The 'declarations  detailed  by  thywitness 
Baggett,  are  reconcilable  with  the  idea,  that  the  intestate 
intended  that  the  property  should  be  considered  an  ad- 
vancement; and  that  all  that  he   meant  to  stat<5   to   the 
witness  was,  that  the  property  which  he  had  d<  tovered  to  />*" 
his  children,  had    not  been  simply   loaned  to   them,  but-      ' 
that   he  had  .given  them   the  absolute  title.     When  \ve/«' 
consider  the  relation  of  the  other  witness  to   the  appel-./"" 
hint,  and  the  caution  with   which   evidence  of  declara-    ' 
tions,  made   in   casual  conversations,   should   always  be 
received,  we  are  not  convinced  that  the  register  erred  in 
deciding  that  this  testimony  was  insufficient  to  overturn 
the  presumption  of  an  'advancement'   arising  out  of  the 
other  facti  in  the  case.     The   record  docs   not  show  that 
the  girl  Oily  constituted  a  part  of  the  advancements  with 
which  the  appellant  was  charged.     On  the  cJfStrary,  the 
inference  from  the  record  is,  that  the  sum  with  whichJpjF 
was  charg    1  waa  exclusive  of  her  value. 
Decree  affirmed.  /A 


3 SUPREME  COURT 

3edell's  Adm'r  v.  Smith. 


BEDELL'S  ADM'R  vs.  SMITH. 

..  |  ACTION   FOK  BREACH  OK  Vr.NDOli's  TITLE-BOND.] 

% 

1.,  Tender  of  deed,  and  eviction,  as  prerequisites  to  right  of  action  on  ten- 
doi\  bond. — Where  the  vendor  has  no  title,  and,  for  that  reason, 
refuses  to  make  a  title  when  requested,  the  tender  of  a  deed  by 
the  purchaser,  to  be  executed,  is  not  necessary  to  perfect  his  right 
of  action  on  the  title-bond  :  and  an  actual  eviction  of  the  purcha- 
ser is  not  necessary,  since  his  right  of  action  accrues  so  soon  as  the 
bond  is  broken  by  a  failure  to  convey. 

2.  Admissibility  of  declarations  of  vendor  'and  his  administrator,  showing 
refusal  and   inability  to  make  title. — In  an  action  on  a  title-bond, 

mst  the  personal  representative  of  the  vendor,  the  declarations 
of  thArendor  in  his  life-time,  and  of  thetlefendant  after  his  quali- 
fication's administrator,  showing  a  refusal  and  inability  on  the 
part  of-each  to  make  title,  are  competent  evidence  for  the  plaintiff 

3.  Limitation  of  act  ion  for  breach  of  title-bond. — Under  the  law  existing 
^before  'the  adoption  of  the  Code,  (Clay's  Digest,  327,  \  81,)  there 

wis  no  statute  of  limitations  applicable  to  an  action  for  a  breach  of 
a  vendor's  title-bond. 

4.  Partial  satisfaction  of  bond. — A  deed,  executed  by  the  vendor  at 
theiequestof  the  purchaser,  conveying  a  part  of  the  land   em- 

,  braced  in  the  title-bond,  with  covenants  of  warranty,  to  a  third 
person,  may  be  accepted  by  the  pun  baser  as  a  partial  compliance 
with  the  condition  of  the  bond  ;  and  being  so  accepted,  its  admis- 
sibility and  validity  are  not  affected  by  a  mistake  in  the  descrip- 
tion of  the  land  conveyed,  nor  by  the  fact  that  the  vendor  had  no 
title  to  that  part  of  the  land. 

5.  Who  is  pmper  party  plaintiff. — The  obligee  is  the  proper  party  to 
sue  for  the  hreach  of  a  vendor's  title-bond,  {Code,  §2129,)  although 
he  bought "ivpart of  the  land  for  the  use  of  a  third  person,  and  has 
sold  the  "residue. 

Appeal  from  the  Circuit  Court  of  Macon. 
Tried  before  the  Hon.  Robert  Dougherty. 

Tins  action  was  brought  bj-  George  Smith,  against  the 
personal  representative  of  Thomas  J.  Bedell,  deceased; 
was  founded  on  the  decedent's  penal  bond,  dated  the  11th 
April,  1838,  and  conditioned  that  he  should,  on  or  before 


OF  ALABAMA.  549 


Bedell's  Adm'r  v.  Smith. 


frhe  25th  December,  1339,  make  to  the  said  George  Smith 
"good  and  sufficient  titles"  to  a  certain  tract  of  land,  sit- 
uated in  Wilkes  county,  Georgia,  containing  three  hun- 
dred and  twenty  acres,  and  described  in  the  bond  as  "the 
east  half  of  section  number  one,  township  nineteen,  and 
range  twenty-live";  and  was  commenced  on  the  15th 
September,  1857.  The  complaint  set  out  the  bond,  and 
alleged  as  a  breach  of  the  condition,  that  the  said  dece- 
dent in  his  life-time,  and  the  defendant  as  his  administra- 
tor, had  each  been  requested  to  make  titles  to  the  said 
tract  of  land,  according  to  the  condition  of  said  bond,  and 
had  failed  and  refused  so  to  do  ;  and  that  neither  the  de- 
cedent in  his  life-time,  nor  the  defendant  as  his  adminis- 
trator, had  ever  had  a  good  title  to  the  said  tract  of  land. 
The  defendant  demurred  to  each  breach  assigned  in  the 
complaint,  because  there  was  no  averment  of  the  tender 
of  a  deed,  and  because  there  was  no  averment  that  the 
plaintiff  had  been  evicted  from  the  land.  The  court 
overruled  the  demurrer,  and  the  defendant  then  pleaded 
the  statutes  of  limitations  of  ten  and  sixteen  years.  There 
was  also  an  agreement,  "that  any  matter  of  defense  might 
be  given. in  evidence,  as  if  legally  and  properly  pleaded, 
and  that  all  proper  and  legal  replications  should  be  con- 
sidered as  filed." 

On  the  trial,  as  the  bill  of  exceptions  states,  the  plain- 
tiff read  in  evidence  the  bond  on  which  the  suit  was 
founded,  and  proved  that  the  lands,  on  the  25th  Decem- 
ber, 1839,  were  worth  $3,000;  also,  "that  he  called  on  the 
defendant's  intestate,  at  the  maturity  of  said  b#nd,  and 
demanded  of  him  a  title  to  said  land ;  that  the  said  intes- 
tate replied,  that  he  did  not  have  a  title,  and  could  not 
then  make  one";  also,  "that  he  again  called  on  said  intes- 
tate, in  1841,  or  1842,  and  demanded  a  title  to  said  lands; 
that  said  int<  plied   to  this  demand  as   before,  and 

asked  f«>r  further  time  to  comply  with  his  bond";  "that 
he  again  called  on  the  intestate,  in  1S52,  and  demanded 
titles  to  said  lands;  that  said  intestate  replied  as  before, 
and  further  said,  that  the  man  had  run  away  from  whom 
he  had  purchased  the  land,  and  that  he  had   been  unable 


SUPREME  COURT 


Bedell's  Adm'r  v.  Smith. 


to  find  him  ;  that  plaiiitiil"  thereupon  told  him,  that  he 
had  I'm  ployed  counsel  to  bring  suit  on  the  bond  ;  to  which 
Raid  intestate  replied,  that  the  statute  <5f  limitations  would 
soon  give  title  to  the  land,  and  that  he  would  get  a  potent 
for  the  land,  if  plaintiff  would  not  sue  him  on  the  bond, 
and  make  him  a  title,  and  asked  for  further  time  to  make 
title";  "that  in  June,  1857,  plaintiff  called  on  defendant, 
and  demanded  a  title  to  said  lands;  and  that  defendant 
replied,  that  she  had  no  title  to  said  lands,  and  did  not 
know  anything  about  the  title,  and  had  not  been  aide  to 
find  out  from  whom  her  intestate  had  purchased  .said 
lands."  The  defendant  objected  to  the  admission  of  the 
declarations  of  herself  and  her  intestate,  as  above  stated, 
and  reserved  exceptions  to  the  overruling  of  her  several 
objections. 

"The. foregoing  being  all  the  evidence  introduced  by 
the  plaintiff,  the  defendant  then  proved,  that  the  plaintiff 
went  into  the  possession  of  said  lands,  in  18-30,  and  re- 
tained the  possession  of  one  hundred  and  sixty  acres 
thereof  for  several  years,  and  then  sold  the  same  to  Miss 
Susannah  Hugely,  who  went  into  the  possession  thereof 
immediately  after  the  sale,  and  lias  cultivated  the  same, 
and  remained  in  possession  ever  since,  undisturbed  ;  that 
the  other  half  of  said  land  was  purchased  by  plaintiff  for 
his  mother,  who  went  into  the  possession  thereof  in  1839, 
and  has  been  in  possession  thereof  ever  since,  cultivating 
the  same  as  her  own.  The  defendant  offered  to  prove, 
that,  on  the  12th  December,  1853,  at  the  instance  of  the 
plaintiff,  said  intrastate  made  a  deed  to  Miss  Hugely  for 
one  hundred  and  sixty  acres  of  said  land,  and  that  plain- 
tiff received  said  deed  as  a  compliance,  to  that  extent, 
with  the  obligation  of  the  bond;  but,  because  the  range 
named  in  said  deed  was,  by  mistake,  different  from  that 
stated  in  the  bond,  the  court  excluded  said  deed  from  the 
jury,  on  the  plaintiff's  objection  ;  to  which  the  defendant 
excepted.  In  connection  with  said  deed,  and  the  accept- 
ance of  the  same  by  the  plaintiff,  the  defendant  offered 
to  show,  that  the  land  described  in  the  bond  was  the  land 
intended  to  be  conveyed  by  said  deed;  but  the  court  ex- 


OF  ALABAMA.  551 


Bedell's  Adm'r  v.  Smith. 


eluded  this  evidence  also,  and  the  defendant  excepted. 

The  defendant  offered  to  [trove,  also,  the  value  of  the  rent 
of  the  land  so  possessed  by  the  plaintiff,  since  the  plain- 
tiff went  into  the  possession  thereof;  but  the  court  ex- 
cluded this  evidence  also,  and  the  defendant  excepted. 
The  defendant  also  proved,  that  she  obtained  ! 
administration  on  the  estate  of  hor  intestate,  on  the  lGth 
October,  1856,  and,  immediately  thereafter,  made  publi- 
cation as  the  law  directs."'  The  defendant  also  read  in 
evidence  two  letters;  one  from  the  commissioner  of  the 
general  land-office  at  Washington,  dated  the  28th  Decem- 
ber, 1857,  which  stated,  that  the  land  described  in  the 
bond  was  an  Indian  reservation,  and  was  not  subject  to 
entry  as  public  land;  and  the  other  from  the  plaintiff,  to 
the  defendant's  attorney,  dated  the  27th September,  1858, 
and  stating,  that  plaintiff  had  bought  one  half  the  land 
for  his  mother — that  the  title  was  "going"  to  his  mother — 
that  the  suit  was  brought  in  his  name,  because  the  bond 
was  in  his  name — ami  that  the  intestate  had  made  a  deed 
to  Miss  Hugely  for  the  other  half  of  the  land. 

"This  being  all  the  evidence,  thai'eourt  charged  the 
jury,  that,  if  they  believed  the  evidence  to  lie  true,  the 
plaintiff  was  entitled  to  recover  the  value  of  the  land  on 
the  25th  December,  1839,  with  ii  from  that  time  to 

the  present";  also,  '-that  the  declarations  of  the  defend- 
ant's int<  •  proved,  if  they  believed  that  they  were 
made  as  proved,  would  prevent  the  statute  of  limitations 
from  being  a  bat  to  this  action";  and  that,  "the  suit  hav- 
ing been  ci  d  within  eighteen  months  after  the 
grant  o!  Iminist  ration  ou  the  intestate's  es- 
tate, the  jury  had  nothing  to  do  with  the  plea  of  the 
statute  of  non-claim,  and  need  not  ascertain  whether  the 
claim  was  presented  to  the  defendant  before  the  com- 
cement  of  the  suit";  to  each  of  which  charges  the 
adant  excepted. 

The  rulings  i. f  the  court  on  the  pleadings  and  evidei 
and  the  charg<  -  to  the  jury,  as  before  stated,  are  nov. 
signed  as  en 


SUPREME  COURT  .  _ 

Bedell's  Ailm'r  v.  Smith. 

If.  Watts,  Cloptox  &  Li&on,  and  N.  S.  Gbab 
for  appellants. — 1.  Each  breach  assigned  in  the  complaint 
is  demurrable,  because  there  is  no  averment  of  the  tender 
of  a  deed,  and  no  averment  of  an  eviction  by  title  para- 
mount.—  Wade  v.  Killough,  4  Stew.  &  P.  450';  Johnson 
v.  Collins,  17  Ala.  324,  and  authorities  there  cited  ;  Banks 
v.  Whitehead,  7  Ala.  81. 

2.  The  statute  of  limitations  was  a  complete  bar,  under 
the  facts  proved;  and  neither  the  declarations  of  the  in- 
testate, nor  those  of  the  defendant,  could  prevent  the 
statute  from  running. — Crawford  v.  Childers,  1  Ala.  482 3 
McVay  v.  Wheeler,  6  Porter,  205;  Duffic  v.  Phillips, 
31  Ala.  573;  11  Wheaton,  309;  3  Md.  Ch.  398;  16  Geo. 
114;  11  Ired.  427  ;  Angell  on  Lim.  247,  §  28. 

3.  The  deed  to  Hugely,  for  a  part  of  the  land,  being 
executed  at  the  request  of  the  plaintiff,  and  accepted  by 
him,  was  a  partial  satisfaction  of  the  bond;  at  least,  it 
ought  to  have  been  allowed  to  go  to  the  jury,  that  they 
might  determine  whether  it  was  so  accepted. — Collins  v. 
Johnson,  20  Ala.  485;  Gibbs  v.  Jemison,  12  Ala.  820. 

4.  The  first  chaf%e  to  the  jury  was  erroneous  for  sev- 
eral reasons.  In  the  first  place,  it  was  an  invasion  of  the 
province  of  the  jury,  because  there  "was  a  conflict  in  the 
evidence. — Allman  v.  Gann,  29  Ala.  240;  Freeman  v. 
Scurlock,  27  Ala.  407.  In  the  next  place,  the  plaintiff 
was  not  entitled  to  recover  at  all,  because  he  was  not  the 
party  really  interested  ;  having  bought  one  half  of  the 
land  for  his  mother,  and  having  sold  the  other  half  to 
Hugely.  In  the  next  place,  if  the  plaintiff  was  entitled 
to  recover  at  all,  the  charge  asserted  an  erroneous  mea- 
sure.of  damages. — WVitesides  v.  Jennings,  19  Ala.  784. 

Gunn  &  Strange,  contra. — 1.  The  complaint  alleges 
facts  which  dispense  with  the  necessity  of  averring  an 
eviction  and  the  tender  of  a  deed. — Johnson  v.  Collins, 
17  Ala.  318  ;  Garnett  v.  Yoe,  17  Ala.  74 ;  Allen  v.  Greene, 
19  Ala.  34. 

2.  The  statute  of  limitations  prescribed  by  the  Code, 
(§  2476,)  does  not  govern  the  case,  because  only  four  years 


OF  ALABAMA.  555 


Bedell's  Adm'r  v.  Smith. 


intervened  between  the  adoption  o£  the  Code  and  the 
commencement  of  the  suit. —  Henry  v.  Thorpe,  f4  Ala. 
103;  Rawls  v.  Kennedy,  28  Ala.  420.  The  act  of  1802 
(Clay's  Digest,  327,  §  81)  does  not  include  penal  bonds 
conditioned  for  any  thing  else  than  the  payment  of  money. 
Williams  v.  Talbot,  16  Tex.  1  ;  7  Johns.  Ch.  556  ;  1  Saun- 
ders, 38  ;  17  Johns.  165  ;  33  l'enn.  St.  R.  435;  2  Martin's 
La.  (N.  S.)  545 ;  4  Texas,  159 ;  16  Arkansas,  122  ;  21  Bar- 
bour, 351. 

3.  If  the  statute  of  limitations  be  applicable  to  the 
case,  the  repeated  promises  of  the  intestate  would  prevent 
its  operation. — Evans  v.  Carey,  29  Ala.  99;  30  Vermont, 
262;  14  Geo.  661;  8  Rich.  (8.  C.)  113. 

4.  The  admissions  of  the  defendant  and  her  intestate, 
having  been  acted  upon  by  the  plaintiff,  were' not  only 
competent  evidence,  but  might  amount  to  an  estoppel. 
Garrett  v.  Garrett,  27  Ala.  651;  Gwynn  v.  Hamilton, 
29  Ala.  232. 

5.  The  deed  to  Hugely  could  have  nothing  to  do  with 
the  case,  because  the  land  conveyed  by  it  was  not  the  land 
mentioned  in  the  bond  ;  and  because,  if  the  land  had  been 
the  siime,  the  grantor  had  no  title  to  it. 

A.  J.  WALKER,  C.  J— [June  18,  1861.]— The  declara- 
tion was  not  objectionable,  for  the  want  of  ah  avermeat 
of  the  tender  of  a  deed  to  be  executed  by  the  defendant's 
intestate;  because  it  shows  that  the  vendor  had  no  title, 
and  also  that  he  refused  to  make  a  title,  when  requested, 
for  the  reason  that  he  had  none.  The  law  does  not  re- 
quire the  useless  ceremony  of  the  preparation  and  tender 
of  a  deed  under  such  eireunistanees. — lohnson  v.  Collins, 
17  Ala.  318  ;  Garnet*  v.  Yoe,  ,/,.  74.  The  plaintiff'  had  a 
right  of  action  as  soon  as  the  coudition  of  the  bond 
broken  b}  a  failure  t<  j •;  it  was  not  necessary  that 

there  should  have  been  an  eviction  of  the  plaintiff  before 
the  action  was  brought  ;  and,  of  course,  an  averment  of 
such  i  .    in   the  declaration  was  not  indispensable. 

Havii  ■  thus  found  the  only  two  objections  to  the  declara- 
tion  urged   in  this  court  to  be  untenable,  we  decide  that 


CTRT 

I's  Adtn'r  v.  Smith. 


on. 

leclarations  of  the  defendant  and   her  in r . 

•v.  both  :i  refusal  >»n   the  pai 
i  make  title,  and  an  inability 
rbieh  wera  important   facts  in   this  that 

m,  and  probably  for  other  reasons,  tl  'Ions 

tie  evidei 
[8.]  The  plaintiff's  cause  of  action  accrued   before  the 
tit  into  operation,  and  is  statute  of 

limit  ire  that  time.-^Pamphlct 

I,  j>.  71  ;  Martin  v.  Martin,  85  Ala.  560.     h:  the  law 

ting  at  the  time  when  tl  went  into  operation, 

there  was  n<>  Btatute  of  limitati  lioable  to  a  suit 

upon  a  peual   bond,  conditioned  Tor  the  discharge  of  a 

duty,  and   not   for  the  payment  of  money.     The  b 

...  which  prescribes  a  limitation  of  sixteen  yean,  in- 
clude* only  action-  upon  leasee  under  soal,  single  or  penal 
lulls  for  the  payment  of  money  only,  obligation*  with 
[ition  for  the  payment  of  money  only,  and  awards 
under  the  seals  of  arbitrators  for  the  payment  of  mouey 
only. — Clay's  I>;  31.     A  bond  conditioned,  as 

is  the  one  here  in  suit,  to  make  a  title  to  land,  is  obvi- 
ously  not  a  cause  of  action  embraced  within  that  statute. 
It  rc.-uks.  that  there  was  uo  error  in  any  ruling  of  the 
court  adversely  to  the  defense  of  the  statute  of  limita- 
tioi 

\-\.\  We  think  the  court  erred  in  excluding  the  deed 
offered  in  evidence.  The  purpose  of  its  offer  was  to  Bhow 
the  acceptance  of  an  act  as  a  compliance,  pr  with 

the  condition  of  the  bond  ;  and  we  think  it  ought  to  have 
admitted  in  evidenoe,  in  connection  with  proof  oj 
its  being  made  at  the  request  of  the  plaintiff,  and  of  its 
acc.j.tanee  by  him.  as  a  compliance  with  the  condition  of 
the  bond  yro  Oatto.     It  is  true,  parol  evidence  was  not  ad- 

miaaikle,  to  Bhow  the  mistake  in  the  description  ofthe  land. 
Such  evidence  would  only  be  admissible  in  a  direct  pro- 
ceeding tor  the.  reformation  of  the  deed.  The  deed  of- 
fered iu  evidence  contains  a  warranty  of  title,  Uponwbieh 


OF  ALABAMA. 

Stubbt  ini'r. 


the  grantor  would   b  giving  of 

tliis  deed,  with  ;i  covenant  of  warranty,  although  the 
grantor  may  have  had  no  title  to  the  land  described  in  itv 
a  valuable  consideration   t<>  Bapporl   the  plain! 
at  to  accept  it  as  a  complianc  .  with  the 

condition  of  the  boti  n  of  \tpro  tanto ; 

and  thai  agreement,  being  tl  dbya  valid  ■ 

ration,  must  I"1  upheld.     If  it  w< 
suit  that,  while  the  dt  fen  clan  t  wonld  be  denied  I  h 
of  it  in  this  suit,  she  mighl  be  held  responsible  at  tl:' 
of  the  third  person,  in  whose  favor  the  deed  waa  m 
for  a  breach  of  warranty.     Ii  I,  the 

would   not   be   changed.     The  warranty  in  it  would 
still  be  a  valuabl  i   for  its  acceptance  as  a 

faction  of  the   bond;  and  it  would   be   most 
bnrea  .  that  the  defendant  should   be  deprive 

the  ':  f  the  partial  tion,aud  still  held  under 

►risibility  to  a  third  j  erton,  upon  the 

deration  of  the  agreement  that   it 
partial  compliance  with  the  bond. 

nk  there  is  any  thing   in  the  point 
that  not  in   the  name  of  the   proper  party 

plaintiff. 

d. 


LDM'R. 

hi«  in.«ol . 

had  col- 


'  SriMiKV  RT 

Stnl>!..*  v.  \ilm'r. 


lected  the  money  on  \)xe  note,  and  of his  promise  to  pay   it.  | 
tenl  evidence  !'■»•  the  creditor. 
2.   Duty  and  liability  of  attorney. — An    attorney,  receiving  a  n<c 
collection,  is  nol  bound  to  file  it  as  a  claim  against  the  insolvent 
estate  bi  the  ';  debtor,  a?i<l  is  not  guilty  of  any  negligence 

in  iUUng  to  file  it.   when  it  appears  that  the  debtor  was   livii 
the  time  the  l  put  in  his  hands,  and  it  is  not  shown  that  he 

had  knowledge  of  the  debti  queal  death. 

.  •■;/  a f  claim. —  When  an  attorney's  receipt  for  a  note,  placed 
in  his  hands  for  collection,  is  filed  as  a  claim  rgainst  his  insolvent 
b  failure  to  specify7  the  amount  of  the  note  is  no  objection 
to  the  claim,  provided  ttie  amonnt  he  shown  by  other-proof. 

Appeal  from  the  Probate  Court  of  Dallas. 

In  the  matter  of  the  .-rale  of  Benjamin  Y.  Beene.  de- 
ceased, which  was  declared  insolvent  by  said  probate 
court,  and  against  which  J.  B.  &  T.  Stubbs  filed  as  a 
claim,  within  the  time,  prescribed  by  law,  a  receipt,  aigne^ 
by  the  infceatate,  in  the  following  words  :  "Received  for 
collection,  of  Valentine  Kirkpatrick,  a  note  drawn  by  J. 
Gibson,  in  favor  of  J.  B.  &  T.  Stubbs,  Dec.  i.  1853."  The 
accompanying  affidavit  of  J.  B.  Stubbs,  attached  to  the 
receipt,  stated,  that  the  note  on  said  Gibson  was  dated  the 
9th  July,  18.")3,  and  was  for  $130  ;  that  Gibson  died,  his  es- 
tate was  declared  insolvent,  and  finally  settled  in  Decem- 
ber, 1856,;  ''and  that  said  Beene  did  not  present  said  note 
to  the  administrator  of  said  Gibs  tate,   nor   did   he 

file  it  in  the  probate  court  of  Dallas  county,  but  wholly 
negleeted  to  do  so;  whereby  deponent  has  lost  the  rob 
lection  of  said  amount  by  the  gross  negligence  of  said 
Beene  us  attorney."  The  administrator  filed  written  ob- 
jections to  the  allowance  of  the  claim,  "because  the  affi- 
davit is  not  sufficient,  and  there  is  no  proof  that  the  note 
could  have  been  collected.''  On  the  trial  of  the  issue  it 
appeared,  "that  Gibson,  the  maker  of  the  note  specified 
in  the  receipt,  died  in  Dallas  county,  during  the  year 
1854  ;  that  his  estate  was  duly  declared  insolvent  by 
probate  court,  and  settled  in  the  early  part  of  the  year 
1856,  paying  the  creditors  a  pro-rata  dividend  of  fifty-two 
cents  on  the  dollars;  that  said  note  was  not  presented  by 


IF  ALABAMA.  557 


St  u  hi  is  v.  B  \  im'r. 


said  Beene,  nor  was  it  allowed  as  a  claim  on  the  final 
tlement  of  said  estate.     It  farther   appeared,  by   the  evi- 
dence of  one  Lloyd,  that,  some  time,  during  the  summer 
I6fl8a6,  he  received  said  receipt  from  the  plaintiffs,  who. 

■din  the  city  of  Montgomery,  to  be  presented  to 
said  Becne ;  that  he  did  present  the  Bame,  in  order  to 
receive  the  sum  coming  from  said  Gibson's  estate;  that 
Beene  told  him,  that  he  had  collected  the  money,  hut  was 
about  leaving  home,  and  woul  when  he  came  hark, 

and  that  said  Beene  did  have  home,  ami  afterwards  died 
on  the  29th  August,  1856.  After  hearing  the  above  evi- 
dence, and  the  argurneuts  of  counsel,' the  plaintiffs  moved 
the  court  to  allow  their  claim,  or  so  much  thereof  as  c 
have  been  collected  from  said  Gibson's  estate,  if  it  had 
been  presented.  The  court  intimated  the  allowance  of 
the  claim;  but,  after  the  decision  of  the  court  was  thus 
intimated,  one  of  the  administrator's  counsel,  who  was  ' 
keeping  an  account  of  the  claims   allowed    and   rejected, 

ived  that   no  amount  wa  lied  in   the    receipt, 

and  thereupon  moved  the  court  to  re-consider  its  judg- 
ment, or  intimation,  as  to  the  allowance  of  the  claim. 
The  plaintiffs  objected  to   this,  because  the  objectiou,  if 

ible  at  all,  came  too  late;  hut  the  court  overruled 
their  objection,  and  rejected  their  claim  ;  to  which  the 
(plaintiffs  excepted."  The  rejection  of  the  claim  is  now 
assigned  as  error. 

with,  and  J.  T.  Morgan,  for  appellants. 
Albx.  ft  -1  HO.  VVii; 

r.— [J un.-  H.j_The  claim   set   up 

gainst  tfa 
on  tl  tubbs,  that  i  had 

id,  and  thereby  rend  I  lia- 

ble lor  ii  -  nt     Tl, 

of  .Mr.  '  ill'-'  n,  I-  'lent 

tion  of  said  amount   I 

attorney."     Jut. 


,~os  supreme  cony 

Stubbs  v.  Beene's  Adm'r. 


can  not  regard  the  evidence  of  the  witness  Lloyd,  who 
testified,  that  Mr.  Beenc  admitted  1o  him  that  he  had  col- 
lected the  money,  and  promised  to  pay  it.  To  receive 
such  evidence,  would  violate  the  rule  which  requires  that 
the  proof  shall  correspond  with  the  allegation,  and  would 
probably  inflict  great  wrong  and  oppression  in  the  sur- 
prise to  the  administrator,  to  which  such  practice  would 
almost  certainly  lead. 

[2.]  The  simple  question  presented  by  the  record  is, 
was  it  the  duty  of  Mr.  Beene,  an  attorney-at-law,  who 
received  the  claim  for  collection  by  suit,  to  file  such  claim 
against  the  estate  of  the  debtor  for  allowance  ;  the  debtor 
dying  after  the  claim  was  received  by  the  attorney,  and 
there  being  no  evidence  that  the  attorney  knew,  either 
that  the  debtor  had  died,  or  that  his  estate  had  been  de- 
clared insolvent.  It  must  be  conceded,  that  an  attorney  - 
at-law,  who  receives  a  claim  for  collection,  in  the  absence 
of  proof  to  the  contrary,  will  be  presumed  to  have  re- 
ceived it  for  collection  by  suit;  and  that,  by  the  implied 
terms  of  such  contract,  he  is  required  to  give  his  profes- 
sional skill  and  attention  to  all  the  ordinary  stages  of  the 
litigation.— See  Mardis  v.  Shackelford,  4  Ala.  493  ;  also, 
Smedea  v.  Elmendorf,  3  Johns.  187.  So,  if  any  cross  litiga- 
tion be  instituted,  which  bears  directly  on  the  further 
progress  of  the  suit  under  his  control,  it  is  possibly  his 
duty  to  represent  his  client  in  such  defensive  cross  litiga- 
tion.— Dearborn  v.  Dearborn,  15  Mass.  316;  Smallwood 
v.  Norton,  20  Maine,  87.  B.at  those  matters  which  lie 
outside  of  the  regular  line  of  professional  attorneyship, 
and  which  partake  rather  of  the  character  of  agencies, 
rest  on  a  different  principle.  While  an  attorney  may 
lawlully  perform  many  of  these  agencies,  he  is  not,  in  the 
absence  of  an  express  engagement  to  do  so,  bound  to 
perform  them.  They  are  not  among  the  implied  obligations 
he  incurs,  when  he  assumes  the  relation  of  attorney  for 
another.— Matter  of  Dakin,  4  Hill,  (N.  Y.)  42  ;  In  re  G. 
Chitty,  2  Dowl.  Pi.  Gases,  421;  OHin  v.  Stetson,  12  Me. 
£44;  Anon.  1!)  Wend.  87.  See,  also,  as  to  atto:i 
powers,  Albertson  v.    Goldsby,  28  Ala.    711;   Wycofl'  v. 


OF  ALABAMA.  559 


Wilson  v.  Sawyer. 


Bergen,  Cox,  (N.  J.)  214.  To  constitute  a  valid  riling  of 
a  claim  against  an  insolvent  estate,  an  affidavit  must  be 
made,  verifying  the  claim,  "by  the  oath  of  the  claim- 
ant, or  some  other  person  who  knows  the  correctness  of 
the  claim."— Code,  §  1847;  Lay  v.  Clark,  81  Ala.  409; 
Carhartv.  Clark,  lb.  396.  This  affidavit  could  not  always 
be  made  by  an  attorney,  for  he  might  not  have  the  requi- 
site knowledge.  We  hold  that,  on  the  evidence  in  this 
record,  the  present  claim  was  not  a  proper  charge  against 
Mr.  Beene's  estate.  Whether,  if  it  had  been  shown  that 
Mr.  Beene  knew  of  the  death  of  Mr.  Gibson,  it  would  not 
have  been  his  duty  to  give  notice  to  his  client,  who  lived 
in  another  county,  we  need  not  and  do  not  decide. 

[3.]  There  was  nothing  in  the  objection,  that  Mr. 
Beene's  receipt  failed  to  specify  the  amount  of  the  note 
on  Mr.  Gibson,  provided  the  proof  showed  the  amount. 

Affirmed. 


WILSON  vs.  SAWYER. 

[ACTIOV   ACIAINST  SHERIFF,   FOR   MOXEY  HAD   AND   R  K.'T.IY  F.P.  ] 

1.  Slter>jT'«  right  to  commisttonifor  exi  cution  of  process  regular  on  its/ace, 
h\ii  -A  sheriff  is  not  entitled,  as  against  the 

sndanl  in  execution,  to  retain  his  commissions  out  of  the  pro- 
ceeds of  the  sale  of  property  under  an  execution  regular  on  its 
face,  but  issued  on  a  judgment  which  is  void  on  account  of  die  in- 
competency of  the  presiding  judge;  although  the  statute  (< 
$  2"J>  1 |  protei  I    bin  in  the  execution  of  BUch  proet 

Appeal  from  tic  Circuit  (^ourt  of  Shelby. 
Tried  before  the  Eon.  -Iamis  B.  Martin. 

This  action  was  brought  by  John  P>.  Wilson,  again  at 

Henry  J.    Sawyer,    I  -urn   of  about  g  ! 


560  SUPREME  COURT 

Wilson  v.  Sawyer. 

money  retained  by  the  defendant  as  his  commissions,  as" 
sheriff,  on  the  sale  of  property  under  an  execution  against 
the  plaintiff';  and  -was  commenced  on  the  13th  August, 
1860.  The  execution  was  issued,  on  the  13th  March, 
1858,  on  a  decree  rendered  by  the  probate  court,  on  the 
9th  March,  1858,  in  favor  of  Martha  J.  Wilson,  against 
the  plaintiff;  went  into  the  hands  of  the  defendant,  as 
sheriff  of  the  county,  and  was  by  him  levied  on  the  plain- 
tiff's property ;  and  the  property  was  sold,  under  said 
execution,  in  July,  185S,  and  brought  about  $8,500.  The 
decree  of  the  probate  court,  on  which  said  execution 
issued,  was  reversed  by  this  court,  at  its  June  term,  1860, 
(before  the  commencement  of  the  present  suit,)  and  the 
cause  remanded;  the  reversal  being  placed  on  the  ground, 
that  the  decree  was  void  on  account  of  the  incompetency, 
from  interest,  of  the  probate  judge  before  whom  the  pro- 
ceedings were  had. — See  the  case  reported  in  36  Ala.  655* 
All  the  facts  of  that  case,  as  shown  by  the  printed  report, 
were  in  evidence,  and  were  admitted  to  be  there  correctly 
stated ;  'and  it  was  agreed,  that  the  report  might  be  con- 
sidered a  part  of  the  bill  of  exceptions.  It  was  further 
admitted,  ''that  said  execution  was  regular  on  its  face  in 
all  respects."  This  being  all  the  evidence,  the  court  in- 
structed the  jury,  if  they  believed  the  evidence,  to  find 
for  the  defendant;  to  which  charge  the  plaintiff  excepted, 
and  he  now  assigns  the  same  as  error. 

Alex.  &  Jno.  White,  for  appellaut. 
S.  &  J.  T.  Leiper,  contra. 

R.  W.  WALKER,  J.— [June  19,  1861.]— The  question 
presented  by  this  record  is,  whether  a  sheriff,  who  has  sold 
property  under  aji..fa.  regular  on  its  face,  but  issued  upon 
a  judgment  which  was  void,  because  the  judge  was  incom- 
petent to  try  the  case,  (Code,  §  560 ;  Wilson  v.  Wilson, 
36  Ala.  655,)  is  entitled,  as  against  the  defendant  in  the 
execution,  to  retain  his  commissions  out  of  the  proceeds 
of  the  sale. 

The  Oode  provides,  that  "whenever  it  appears  that  the 


OF  ALABAMA.  561 


Wilson  v.  Sawyer. 


process  is  regular  on  its  face,  and  is  issued  by  the  compe- 
tent authority,  a  sheriff,  or  other  ministerial  officer,  is 
justified  in  tire  execution  of  the  same,  whatever  may  be 
the  defect  in  the  proceeding  on  which*  it  was  issued." — 
Code,  §  2284.  This  section  was  designed  to  give  legisla- 
tive sanction  to  the  just  and  salutary  rule,  adopted  by 
some  courts  independently  of  legislation,  that  ministerial 
officers  are  not  responsible  for  executing  an}'  process  reg- 
ular on  its  face,  if  the  court  from  which  it  issues  has  i^an-  . 
eral  jurisdiction  to  award  such  process,  although  il  had 
not  jurisdiction  in  that  particular  case. — See  Rogers  v. 
Mullincr,  6  Wend.  597;  Lewis  v.  Palmer,  ib.  367;  Sava- 
Co61v.Boughton,5Wend.  170;  Coon  v.  Cougden,  12  Wend. 
496;  People  v.  Cooper,  13  Wend.  379,  \384-;  Noble  v. 
Holmes,  5  Hill,  194;  Peopie  v.  Warren,  5  Hill,  440; 
Watson  v.  Watson,  9  Conn.  140;  Jones  v.  Hughes, 
SSerg.  &  R.  299;  Forward  v.  Marsh,  18  Ala.* 645,  648  ; 
Clarke  v.  May,  2  Cray,  410  ;  3  Phil.  Ev.  (C.  k  II.  notes, 
ed.  1843,)  pp.  990,  107-8-9,  1078. 

But  the  rule  which  justifies  an  officer,  who  acts  under 
process  apparently  regular,  though  really  void,  is  one  of 
protection  merely.  "It  la  a  shield,  but  not  a  sword. 
The  officer,  when  sued,  may  defend  under  such  process; 
but  he  cannot  build  up  a  title  upon  it,  which  will  enable 
him  to  maintain  actions  against  third  persons." — Ilorton 
v.  Ilcndershott,  1  Hill,  118;  Sturbridge  v.  Winslow,  21  Pick- 
83,  87. 

The  execution  in  this  case,  though  regular  upon  its 
face,  was  in  fact  void,  and,  in  the  very  nature  of  tilings, 
no  right  can  arise  out  of  it.  The  statute  exempts  the 
sheriff  from  responsibility;  hut  it  was  not  designed  tore- 
ward  or  compensate  him  for  executing  such  process.  It 
would  be  most  unjust,  indeed,  t<>  take  the  property  of  a 
oitizen   to  pay  for  the  execution   of  proc<  inst  him 

which  was  issued  without  authority  of  1  aw.  The  principle 
is  a  sound  one,  that  "noright  can  lie  derived  tmin  an  un- 
lawful act,  in  favor  of  a  sheriff  who  <]i>r>  the  unlawful  act.'' 
(Collier  v.  Windham,  27  Ala.  29-1 ;)  and  hence  we  conclude, 
that  where  thejudgnieut  is  void,  the  sheriff  is  not  entitled 


562  SUPREME  COURT 


Smith  v.  Johnson. 


to  commissions  tor  executing  the  Ji.  fa.  issued  upon  it. — 
See  Nowlin  v.  McCallcy,  31  Ala.  682. 

Judgment  reversed,  and  cause  remanded/ 


SMITH  vs.  JOHNSON. 

[PROCEEDING  BEFORE  PRORATE  COURT  FOR  ASSIGNMENT    OF  DOWER.] 

1.  Validity  of  contract  contravening  policy  jof  public  land-laws. — A  con- 
tract between  A  and  IJ,  by  which  it  is  agreed,  that  the  former  shall 
enter  a  tract  of  land,  under  the  graduation  act  of  1854,  (10  U.  S. 
Statutes  at  Large,  574,)  in  his  own  name,  but  for  their  joint  use  and 
benefit,  anfl  that  the  latter  shall  furnish  the  purchase-money, — 
being  in  contravention  of  the  policy  of  that  statute,  as  indicated  by 
the  affidavit  required  of  the  party  making  the  entry,  is  illegal  and 

'■void. 

2.  Specific  performance of illegal  contract. — A  court  of  equity  will  not 
decree  the  specific  execution  of  a  contract  which  is  illegal  and 
void,  because  in  contravention  of  the  policy  of  the  public  land- 
laws,  although  the  parly  asking  it  is  in  possession  of  the  land,  and 
has  made  valuable  improvements. 

3.  When  probate  court  may  assign  flower. — In  proceedings  before  the 
probate  court  for  an  assignment  of  dower,  (Code,  \\  1300-7:2,)  it  is 
no  defense  to  the  application,  that  the  lands  in  which  dower  is 
sought,  and  of  which  the  decedent  died  seized  and  possessed,  are 
in  the  possession  of  a  third  person,  who  claims  an  undivided  half 
interest  in  them,  under  a  contract  between  him  and  the  decedent, 
by  which  it  was  ngreed,  that  the  latter  should  enter  the  lands,  under 
the  graduation  act  of  i  85  I.  in  his  own  name,  but  for  their  joint  use 
and  benefit,  and  with  money  furnished  by  the  former:  such  con- 
tract being  illegal  and  void,  the  person  in  possession  is  not  an 
alienee  of  the  decedent,  and  the  fact  that  he  has  made  valuable 
improvements  on  the  land  does  not  take  away  the  jurisdiction  of 
the  probate  court. 

Appeal  from  the  Probate  Court  of  Barbour. 

In  the  matter  of  the  petition  of  Mrs.   Anna  E.  Smith, 
formerly  the  widow  of  Emanuel  Johnson,  deceased,  for 


OF  ALABAMA.  •      663 


Smith  v.  Johnson. 


an  assignment  of  her  dower  in  the  lands  of  her  said  de- 
ceased husband.  The  decedent  died  on  the  14th  Febru- 
ary, 1856,  and  the  petition  was  filed  on  the  6th  April, 
1859.  William  W.  Johnson,  who  was  the  administrator 
and  brother  of  the  decedent,  and  who  had  possession  of 
the  lands  in  which  dower  was  sought,  contested  the 
petitioner's  right  to  dower  ;  contending  that  the  decedent 
had  aliened  to  him  an  undivided  half  interest  in  the 
lands,  and  that  therefore  the  probate  court  had  no  juris- 
diction to  assign  dower  to  the  petitioner  ;  and  pleading 
the  statute  of  limitations  of  three  years.  It  appeared  on 
the  hearing  of  the  petition,  as  the  bill  of  exceptions  shows, 
that  the  decedent  entered  the  lands,  at  the  land-office  in 
Elba,  at  twenty-live  cents  per  acre,  under  the  act  of  con- 
gress approved  August  4,  1854,  commonly  called  the 
"graduation  act";  that  the  purchase-money,  with  which 
the  entry  was  made,  was  furnished  by  the  contestant; 
that  the  entry  was  thus  made,  and  the  purchase-money 
thus  furnished,  in  pursuance  of  a  verbal  contract  between 
the  decedent  and  the  contestant,  by  which  it  was  further 
agreed,  that  the  entry  was  to  enure  to  their  joint  use  md 
benefit, — each  party  to  have  one  half  of  the  land.  It  fur- 
ther appeared,  that  the  decedent,  after  entering  the  land, 
deposited  t  he  certificates  of  entry  with  Mrs.  Sarah  Johnson, 
who  was  the  mother  of' himself  and  the  contestant,  "re- 
questing her  to  keep  them  for  himself  and  \Villiam  until 
the  lauds  should  be  divided,  and  stating,  at  the  same  time, 
that  one  half  of  the  lands  belonged  to  said  William"; 
thai    in  ilv    afterwards   disclaimed   the   absolute 

ownership  of  the  land,  and  admitted  that  one  half  of  it 
belonged  to  the  Contestant;  that  he  and  the  contestant 
jointly  occupied,  cultivated,  and  improved  the  land,  up 
to  the  time  of  his  (hath;  that  the  contestant  then  con- 
tinued in  the  possession,  cultivated  and  improved  the 
Uud,  by  clearing,  erecting  fenw  ind   returned   one 

half  of  it  in  his  inventory,  as  administrator  of  the  d 

and  that  the 
land  had  never  been   divided   between   them,   nor  other- 
1  of.      On  tl  -,  the  probate   di 


564     .• BFPREME  COURT 

Smith  v.  Johnson. 

the  petition;  and  its   judgment  thereon,   to  which  the 
petitioner  excepted,  is  now  assigned  as  error. 

.  J.  Buford,  for  appellant. — It  is  against  public  policy 
that  lands  shonjd  be  entered,  under  the  graduation  act, 
by  one  person  for  the  use  of  another  ;  and  the  party  mak- 
ing the  entry  is  required  by  the  statute  to  make  oath  to 
the  contrary. — Dunlop's  Digest  II.  S,  Laws,  1442.  The 
alleged  contract  between  the  decedent  and  the  contestant, 
being  against  public  policy,  was  illegal  and  void,  and  \vou\d 
not  be  specifically  enforced  by  a  court  of  equity. — Dial  v. 
Hair,  18  Ala.  7H8  ;  Evans  v.  Kittrell,  33  Ala.  440;  Story 
on  Contracts,  §§  545,  569,  581,  615  ;  Story's  Equity,  §§  751, 
769.  As  the  contestant  had  neither  a  legal  title  to  the 
land,  norsuch  an  equitable  interest  as  might  be  enforced  in 
chancery,  he  cannot  be  considered  an  alienee  or  purchaser 
from  the  decedent,  within  the  contemplation  of  section 
1369  of  the  Code. 

Pugh  &  Bullock,  contra. — If  the  coutract  between  the 
decedent  and  the  contestant,  and  the  partial  performance 
thereof,  as  disclosed  by  the  evidence,  amounted  to  a  valid 
alienation  of  the  laud,  the  petition  was  properly  dis- 
missed— 1st,  because  the  court  had  no  jurisdiction  ;  and, 
2d,  because  the  statute  of  limitations  was  a  complete  bar. 
Code,  §§  1369,  1372  ;  Session  Acts  1857-8,  p.  47  :  23  Ala. 
616.  The  payment  of  the  purchase-money,  possession 
under  the  contract,  the  erection  of  valuable  improve- 
ments, and  the  continued  admission,  by  word  and  deed, 
of  the  contestant's  title,  take  the  case  out  of  the  opera- 
tion of  the  statute  of  frauds.  The  only  question,  then, 
is,  whether  the  validity  of  the  contract  is  affected  by  the 
graduation  act,  under  which  the  entry  was  made.  Bat, 
if  the  contract  be  void,  as  being  contrary  to  the  provis- 
ions or  policy  of  that  statute,  then  the  entry  also  is  void, 
and  the  petitioner  has  no  title.  T.he  contestant  has  pos- 
on,  and  relies  on  the  maxim,  jiotior  est  conditio  possi- 
dentis ;  and  the  petitioner  cannot  assail  his  title,  without 
at  the  same  time  destroying  her  own. 


OF  ALABAMA.  565 


Smith  v.  Johnson. 


A.  J.  WALKER,  C.  J.— [June  17,  1861.]— All  the  ob- 
jections made  to  the  appellant's  petition,  rest,  as  their 
basis,  upon  the  ground  that  the  appellee  was  apurehaser 
from  the  appellant's  former  husband,  of  a  moiety  of  the 
land  in  which  dower  is  claimed.  The  purchase  is  claimed 
to  have  resulted  from  a  contract  made  between  the  ap- 
pellant's deceased  husband  and  the  appellee,  that  the  for- 
mer should  enter  the  land,  under  the  act  of  congress 
entitled,  "an  act  to  graduate  and  reduce  the  price  of  the 
public  lands  to  actual  settlers  and  cultivators,"  and  that 
the  appellee  should  furnish  the  entrance  money  ;  which 
contract  was  followed  by  an  entry  of  the  land,  in  pursu- 
ance of  it,  with  money  supplied  by  the  appellee,  and  the 
subsequent  joint  occupation  and  improvement,  by  the 
deceased  and  the  appellee.  This  contract,  being  parol, 
was  within  the  statute  of  frauds. — Ilenly  v.  Brown,  1  St. 
144;  Kizer  v.  Lock,  9  Ala.  2Gf).  From  this  it  results, 
that  the  appellee  could  have  acquired  by  the  agreement, 
the  payment  of  money  according  to  its  terms,  and  the 
subsequent  improvement,  a  right  to  go  into  equity  for  a 
Specific  performance  of  the  parol  contract;  which  right 
might  be  denominated  an  equitable  title  to  the  land,  if, 
under  the  facts,  a  court  of  equity  would  have  granted  the 
specific  performance.  It  follows,  that  the  entire  ques- 
tion, whether  any  right  to  the  land  ever  vested  in  the 
appellee,  depends  upon  the  sufficiency  of  his  claim  to  a 
specific  performance  in  a  court  of  equity. 

[1.]  The  third  section  of  the  graduation  act  of  con- 
gress, ;ibovc  referred  to,  requires,  as  a  preliminary  to  the 
entry  of  land  under  it,  an  affidavit  of  the  applicant,  that 
lie  enters  the  same  for  his  own  use,  and  for  the  purpose 
of  actual  settlement  ami  cultivation,  or  for  the  use  of  an 
adjoining  farm  or  plantation  owned  or  occupied  by  him  ; 
and  that,  together  with  the  entry,  he  has  not  acquired 
from  the  United  State-,  under  the  provisions  of  the  act, 
more  than  three  hundred  and  twenty  acres,  according  to 
the  established  survi  j  s. — 10  U.  S.  Statutes  at  Large,  574. 
The  agreement  above  se1  forth  comes  directly  within  the 
inhibition  contained  in  the  affidavit  required,  and  would 


566        __  SUPREME  COURT  

Montgomery  &  West  Point  Railroad  Company. 

be  illegal  and  void,  upon  the  principles  settled  in  Tenni- 
eon  v.  Martin,  (13  Ala.  21,)  Hudson  v.  Milner,  (12 ib.  667,) 
and  Dial  V.  Hair,  (18  Ala.  798.) 

[2.]  Because  the  contract  is  illegal  and  void,  a  court  of 
equity  would  not  compel  a  specific  performance  of  it, 
notwithstanding  the  party  seeking  the  specific  perform- 
ance might  be  in  possession.— Dial  v.  Hair,  supra.  It  ia 
a  maxim,  that  in  pari delicto  potior  est  conditio  possidentis. 
But  this  maxim  was  never  designed  to  infringe  the  prin- 
ciple, that  the  courts  will  not  aid  in  the  enforcement  of  a 
contract  violative  of  the  law.  In  this  case,  the  appellee 
seeks  to  set  Up  an  illegal  contract,  for  the  purpose  of 
showing  an  equality  of  fault  in  the  making  of  such  con- 
tract, in  order  that  he  may  obtain  the  benefit  of  it. 

[3.]  As  there  was  no  contract  by  which,  either  in 
equity  or  at  law,  any  right  vested  in  the  appellee,  it  can 
not  he  said  that  there  was  any  alienation  by  the  deceased, 
or  that  the  appellee  was  an  alienee. 

The  entire  defense,  upon  which  the  appellant's  petition 
was  resisted,  is  untenable  ;  and  therefore  the  decree  of 
the  court  below  is  reversed,  and  the  cause  remanded. 


DOUGLASS  vs.   MONTGOMERY   &   WEST  POINT 
RAILROAD   COMPANY. 

[ACTIOS    AOAINST    RAILROAD    COMPANY,    AS    COMMON    CARRIER,    FOR    NEOLI 

OENCE.] 

1.  When  nonsuit,  with  hill  of  exceptions,  may  he  taken. — A  nonsuit  may 
be  taken,  with  a  bill  of  exceptions,  (Code,  ?  2357,)  in  consequence 
of  the  suppression  of  the  plaintiff's  deposition,  on  motion,  before 
the  trial  is  entered  upon. 

2.  (o7n.pde.nci/  of.  plaintiff,  in  action  against  common  carrier,  to  prove  con- 
tents and  value  oj  lost  baggage. — In  an  action  against  a  railroad  com 
pany,  as  a  common  carrier,  to  recover  damages  for  the  loss  of  a 


Of  ALABAMA.  567 

Douglass  v.  Montgomery  &  West  Point  Railroad  Company. 

passenger's  baggage,   the  plaintiff  may  prove  the  contents  and 
value  of  his  trunk  by  his  own  oath. 
o.   When  deposition  of  "patty  may  be  taken* — When  a  party  is  competent 
to  testify  in  his  own  favor,  his  deposition  may  lie  taken,  as  in  case 
of  other  witnesses. 

AppbAl  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  Hon.  S.  I>.  Hale. 

Tuts  action  was  brought  by  Jules  Douglass,  against  the 
Appellee,  as  a  common  carrier,  to  recover  damages  for  the 
loss  of  the  plaintiff's  baggage  while  traveling  on  the  de- 
fendant's railroad  between  Montgomery,  Alabama,  and 
Columbus,  Georgia.  When  the  cause  was  called  for  trial, 
as  the  bill  of  exceptions  states,  and  the  plaintiff  had  an- 
nounced himself  ready,  the  defendant  submitted  a  motion 
to  suppress  the  plaintiff's  deposition,  (which  had  been 
taken  on  interrogatories  and  cross-interrogatories,)  on  the 
grounds — •"  1st,  that  there  is  no  law  authorizing  the  taking 
of  the  deposition  of  a  party  plaintiff;  and,  2d,  that  the 
plaintiff  was  not  competent  to  testify  in  his  own  favor*.'' 
At  the  time  of  filing  cross-interrogatories,  the  defendant 
had  also  objected  to  the  taking  of  the  deposition,  "on  the 
ground  that  the  law  does  not  authorize  the  plaintiff*  to  be 
examined,  to  prove  the  correctness  of  his  demand,  in  a 
suit  against  a  corporation."  The  plaintiff  then  showed 
to  the  court,  that  he  resided  in  [the  city  of  Baltimore, 
Maryland,  which  was  more  than  one  hundred  miles  from 
Montgomery,  and  that  his  deposition  had  been  taken  on 
that  account;  and  stated,  that  he  only  proposed  to  read 
in  evidence  so  much  of  his  deposition  as  tended  to  prove 
the  contents  and  value  of  his  lost  baggage,  and  to  make 
out  the  rest  of  his  case  by  evidence  aliunde.  The  court 
sustained  the  defendant's  motion,  and  refused  to  allow 
the  plaintiff  to  use  any  part  of  his  deposition  for  any  pur- 
pose. The  plaintiff  excepted  to  this  ruling  of  the  court, 
and,  in  consequence  thereof,  at  the  next  term,  took  a 
nonsuit;  and  he  now  assigns  said  ruling  as  error,  and 
moves  to  set  aside  the  nonsuit. 


5C,$  SUPREME  COURT 


lass  v.  Montgomery  &  West  Point  Rnilroad  Company. 


W.  A.  Gunter,  tor  appellant. — On  principles  of  public 
policy  and  necessity,  the  plaintiff,  in  an  action  against  a 
common  carrier  for  negligence,  may  prove  the  contents 
and  value  of  his  lost  baggage  by  his  own  oath,  after  estab- 
lishing the  delivery  and  loss  by  other  competent  testi- 
mony.— 1  Greenl.  Ev.  §§  82,348;  Herman  v.  Drinkwater, 

1  Greenl.  Rep.  27;  Clarke  v.  Speuce,  10  Watts,  335; 
Gilmore  v.   Bowdcn,  3   Fairf.  (Me.)  412  ;   1  Yeates,  34; 

2  Watts  &  Ser.  369;  3  Ban-,  451;  10  Barr,  45;  Story  on 
Bailments,  §  454,  note  4;  2  Smith's  Leading  Cases,  (II.  & 
W.'s  Notes,)  131. 

2.  If  the  plaintiff,  being  present,  was  competent  to  tes- 
tify for  himself,  his  deposition  might  be  taken  as  in  case 
of  any  other  witness. — Moore  v.  Hatfield,  3  Ala.  442. 

GoLDTiiWAiTE,  Rice  &  Semple,  contra — 1.  Section  2357 
of  the  Code  authorizes  a  nonsuit,  with  a  bill  of  exceptions, 
only  from  decisions. made  "on  the  trial  of  a  cause;"  that 
is,  after  the  trial  has  begun.  That  this  statute  is  to  be 
strictly  construed,  see  Palmer  v.  Bice,  28  Ala.  430.  In 
this  case,  the  motion  to  suppress  the  deposition  was 
made,  as  the  statute  (Code,  §  2328)  requires  it  should  be 
made,  "before  entering  on  the  trial;"  aud  the  nonsuit 
was  taken  at  the  next  term. 

2.  The  plaintiff  was  not  competent  to  testify  in  his 
own  favor. — I  Greenl.  Ev.  (7th  ed.)  §  348,  note  4;  Snow 
v.  Eastern  Railroad  Co.,  12  Metcalf,  44. 

3.  If  be  was  competent,  there  is  no  statute  authorizing 
his  deposition  to  be  taken.  Section  2318  of  the  Code 
applies  only  to  witnesses,  and  does  not  include  parlies. 

STONE,  J.— [June;  18,  1861.]— It  is  urged  by  appellee 
that,  inasmuch  as  the  decision  of  the  circuit  court,  which, 
is  sought  to  be  reviewed,  was  pronounced  on  a  motion 
made  and  heard  before  the  trial  was  entered  upon,  the 
case  is  not  within  the  provisions  of  section  2357  of  the 
Code,  which  applies  only  to  decisious  of  the  court  made 
on  the  trial  of  a  cause.  The  argument  is  not  defensible. 
Section  2353  of  the  Code  confers  the  power  of  reserving, 


OF  ALABAMA.  569 


Douglass  v.  Montgomery  &  West  Point  Railroad  Company. 


'by  bill  of  exceptions,  "any  charge,  opinion,  or  decision 
■of  the  court,  which  would  not  otherwise  appear  of  record."' 
Yet  this  section  contains  almost,  the  identical  words  which 
are  found  in  section  2357.  Its  language  is,  "Either  of 
the  parties  in  any  civil  case,  during  the  trial  of  the  cause, 
may  reserve  by  bill  of  exceptions,"  &c.  If  we  were  to 
confine  the  operation  of  section  2357  to  decisions  pro- 
nounced on  the  final  trial,  by  the  same  rule  we  would  be 
required  to  limit  the  operation  of  section  2353  to  charges, 
opinions,  and  decisions,  made  during  the  trial  in  chief. 
Yet  it  is  the  universal  practice,  sanctioned  by  repeated 
decisions  ot  this  court,  to  reserve  by  bill  of  exceptions 
questions  arising  on  decisions  pronounced  in  the  prepar- 
atory stages  of  the  suit,  provided  those  decisions  bear  on 
the  final  result;  and  questions  thus  reserved  are  reviewed 
in  this  court. — Shepherd  &  Gordon  v.  Spriggs,  29  Ala. 
673;  Peavey  v.  Burket,  35  Ala.  141.  We  place  the  same 
construction  on  each  cited  section  of  the  Code,  and  hold 
that  we  will  consider  of  I  he  question. 

[2.]  The  main  question  in  this  cause  has  not  before 
been  considered  in  this  court.  We  confess  that,  what- 
ever rule  we  may  declare,  we  perceive  probable  hardship 
and  injustice  in  Us  application.  Corrupt  men  may  per- 
vert the  privilege  of  being  witnesses  in  their  own  causes, 
to  their  personal  profit;  while,  on  the  other  hand,  to  deny 
to  a  party  the  right  of  testifying  in  a  case  like  the  present, 
is  almost  the  equivalent  of  withholding  from  the  travel- 
ing public  all  remedy  for  losses  of  their  baggage.  As  we 
said  on  a  former  occasion,  the  "result  of  the  introduction 
of  steamboats  mid  railroads  is,  that  common  carriers  have, 
great  extent,  taken  exclusive  possession  of  the  public 
thoroughfares  of  the  country." — Steeled  Burgess  v.  Town- 
send,  at  the  last  term.  So,  we  may  add,  that  railroads 
and  steamboats  have  almost  a  monopoly  of  the  public 
travel  on  their  respective  routes.  The  traveler  is  under 
tumoral  necessity  to  accept  the  car  or  the  boat's  cabin; 
ami  it  is  part  and  parcel  of  that  necessity  that  he  shall 
submit  his  valuables  to  the  carj  and  control  of  the  em- 
ployees of  such  public  lines  of  conveyance.  To  require  of 
37 


'0  SUPREME  COURT 


Douglass  v.  Montgomery  it  West  Point  Railroad  Company. 

a  traveler,  whose  baggage  has  been  lost  while  in  transit 
on  a  railroad,  that,  the  loss  being  established  by  other 
testimony,  ho  shall  also  prove  by  disinterested  witni 
each  article  of  his  wardrobe  and  its  value,  is  simply  to  de- 
clare railroads  cannot  beheld  accountable  for  their  faults 
and  breaches. of  contract,  because  of  a  defect  in  the  law. 
We  arc  aware  that,  in  the  case  of  Snow  v.  Eastern  Rail- 
road Co.,  (12  Mete.  44,)  the  supreme  court  of  Massachu- 
setts, in  a  case  like  the  present,  excluded  the  evidence  of 
the  plaintiff;  holding,  that  the  rule  only  applied  where 
the  defendant,  or  the  employees  of  the  defendant,  had 
been  convicted  by  other  evidence  of  an  act  of  spoliation, 
or  of  felony.  But  the  authorities  explode  this  distinction. 
In  a  case  against  a  common  carrier  before  Montague,  B., 
"a  question  arose  about  the  things  in  a  box;  and  he  de- 
clared, that  that  this  was  one  of  those  cases  where  the 
parly  himself  might  be  a  witness  propter  veccssi/aton  rci. 
For  ovciy  one  did  not  show  what  he  put  in  his  box." — 
12  Viner's  Abr.  24,  pi.  34.  Mr.  Greenleaf  says,  "Such 
evidence  is  admitted,  not  solely  on  the  ground  of  the 
just  odium  entertained,  both  in  equity  and  at  law, 
against  spoliation,  but  also  because,  from  the  necessity 
of  the  case  and  the  nature  of  the  subject,  no  proof 
can  otherwise  be  expected:  it  not  being  usual  even 
for  the  most  prudent  persons,  in  such  cases,  to  exhibit 
the  contents  of  their  trunks  to  strangers,  or  to  pro- 
vide other  evidence  of  their  value.  For,  where  the  law 
can  have  no  force  hut  by  the  evidence  of  the  person 
in  interest,  there  the  rules  of  the  common  law,  respecting 
evidence  in  general,  are  presumed  to  be  laid  aside ;  or 
rather,  the  subordinate  are  silenced  by  the  most  transcen- 
dent and  universal  rule,  that  in  all  cases  that  evidence  is 
good,  than  which  the  nature  of  the  subject  presumes  none 
better  to  be  attainable." — 1  Greenl.Ev.  §  348,  and  authori- 
ties cited.  See,  also,  Cow.  k  Hill's  Notes  to  Phil.  Ev.  (3d 
ed.)  vol.  1  of  Notes,  56-7 j  and  authorities  on  appellant's 
brief.  We  hold,  that  the  plaintiff  was  a  competent  wit- 
to  testify  of  the  contents  of  bis  trunk,  and  the  values 
of  the  several  articles. 


OF  ALABAMA. 571 

Taylor  v.  Strickland. 

[3.]  Having  ascertained  that  the  plaintiff  was  a  com- 
petent witness  to  testify  in  his  own  behalf,  to  the  extent 
to  which  his  testimony  was  offered,  the  right  existed  to 
take  his  testimony  by  deposition,  as  in  case  of  other  wit- 
nesses.—Code,  §  2318;  Moore  v.  Hatfield,  3  Ala.  442. 

Judgment  (if  the  circuit  court  reversed,  nonsuit  set 
aside,  and  cause  remanded. 


TAYLOR  vs.  STRICKLAND. 

[▲CTIOt)  ON  PROMISSORV  NOTE,  IiY  ASSIQNKE  AGAINST  MAKER.] 

1.  General  objection  to  deposition. — A  separate  objection  to  "each  sen- 
tence of  each  deposition,"  is  nothing  more  than  ageneral  objection 
to  each  deposition  ;  and  if  each  deposition  contains  some  legal  evi- 
dence, such  objection  may  be  overruled  entirely. 

2.  Mistake  in  payee's  name  in  note. — When  a  promissory  note  is,  by 
mistake,  made  payable  to  Aaron  Forviey,  instead  of  Aaron  Furvihy,. 
the  latter  may  sue  upon  it  in  his  own  name,  alleging  that  it  was 
made  payable  to  him  by  the  name  therein  inserted,  and  may  prove 
on  the  trial,  by  parol  evidence,  that  he  was  the  person  intended  ; 
and  bis  assignee  may  sue  in  like  manner,  making  the  same  aver- 
ments and  proof.     (Overruling  Gayle  v.  Hudson,  10  Ala.  11(5.) 

Appeal  from  the  Circuit  Court  of  Randolph. 
Tried  before  the  lion.  James  B.  Martin. 

Tnrs  action  was  brought  by  "Wilson  Strickland,  against 
Jesse  R.  Taylor;  and  was  founded  on  a  promissory  note,, 
of  which  the  following  is  a  copy: 

"  On  or  before  the  1st  January,  1858,  Ir  as  trustee  for 
Alary  Ann  Taylor  and  Eliza  Ann  Taylor,  promise  to  pay 
Aaron  Foriney,  or  bearer,  four  hundred  dollars,  being 
balance  of  purchase-money -for  land  DMf  Rock  Mills,  in 
Randolph  county,  Alabama,  value  received,  September 
20, 1866/' 

Signed)  "Jesse  R.  Taylor." 


572  SUPREME  COURT 

Taylor  V.  Strickland. 

The  amended  complaint  contained  two  counts;  the 
first  describing  the  note  as  payable  to  Aaron  Fonmbj, 
and  alleging  that  it  was  the  prop'erty  of  the  plaintiff;  and 
the  second  averring,  that  it  was  made  payable  to  Aaron 
Formby,  by  the  name  of  Aaron  Formey.  The  defendant 
demurred  to  the  amended  complaint,  "on  the  ground 
that  the  note  therein  specified  cannot  be  sued  on,  and  a 
recovery  had  thereon  in  a  court  of  law,  before  said  note 
is  reformed  in  a  court  of  chancery"  ;  and  his  demurrer 
being  overruled,  he  pleaded  the  general  issue,  with  leave 
to  give  any  special  matter  in  evidence. 

On  the  trial,  as  the  bill  of  exceptions  shows,  wheu  the 
plaintiff  offered  to  read  to  the  jury  the  note  above  copied, 
the  court  excluded  it  on  the  defendant's  motion.  The 
plaintiff  then  offered  said  note  in  connection  with 
the  depositions  of  several  witnesses,  who  testified,  in 
substance,  to  a  sale  of  land  by  Aaron  Formby  to  the 
defendant,  and  the  execution  of  a  note  for  $400  by 
the  latter,  for  a  part  of  the  purchase-money.  The  de- 
fendant "objected  separately  to  the  depositions  of  each 
of&ttid  witnesses,  and  also  objected  separately  to  each 
sentence  of  each  deposition,  and  also  objected  separately 
to  the  reading  of  said  note  as  evidence."  The  court  over- 
ruled each  of  these  objections,  and  allowed  the  note  and 
depositions  to  be  read  to  the  jury  ;  and  the  defendant 
excepted. 

The  court  charged  the  jury,  "that,  if  the  note  sued  on 
was  made  1ry  the  defendant,  payable  to  Aaron  Formby, 
by  the  name  and  style  of  Aaron  Formey,  and  delivered 
to  him,  then  the  plaintiff  was  entitled  to  recover;  and 
that,  in  determining  whether  said  note  was  made  payable 
to  Aaron  Formby,  by  the  name  of  Aaron  Formey,  they 
might  look  to  any  evidence  showing  a  sale  of  land  by  said 
Aarc*  Formby  to  said  defendant,  at  the  time  said  note 
was  gr^en,  if  there  was  any  such  evidence  before  them." 
The  defendant  excepted  to  this  charge,  and  requested 
the  court  to  instruct  the  jury,  that  they  could  not  find  for 
the  plaintiff,  although  they  might  believe  all  the  evidence 
in  the  cause,  and  although  they   might  believe  that  the 


OF  ALABAMA,  573 


Tavlor  v.  Strickland. 


name  of  Aaron  Formey  was  inserted  in  the  note  by  mis- 
take, instead  of  Aaron  Forniby.  The  court  refused  these 
charges,  and  the  defendant  excepted  to  their  refusal. 

The  several  rulings  of  the  court  on  the  pleadings  and 
evidence,  the  charges  given,  and  the  refusal  of  the  charges 
asked,  are  now  assigned  as  error. 

IIeflin  &  Forney,  for  appellant,  cited  Oayle  v.  Hud- 
son, 10  Ala.  116;  Minis  v.  Flournoy,  17  Ala.  36 ;  Mims 
v.  Snorter's  Adm'r,  18  Ala.  655 ;  1  Story's  Equity 
Jar.  §§  164-5. 

J.  Falkner,  contra. 

R.  W.  WALKER,  J.— [July  11, 1861.]— The  objection 
"to  each  sentence  of  each  deposition"  was  nothing  more 
than  a  general  objection  to  each  deposition  ;  and  as  each 
deposition  contained  some  legal  evidence,  the  objections 
were  properly  overruled. — Milton  v.  Rowland,  11  Ala. 
732;  Donnell  v.  Jones,  13  Ala.  490. 

[2.]  It  is  well  settled,  that  though  a  promissory  note, 
or  bill  of  exchange,  be  drawn  payable  to  a  person  in  a 
wrong  name,  the  error  will  not  affect  his  title,  nor  destroy 
his  right  to  transfer  the  paper.  And  if  a  note  be  made  to 
a  person  by  a  wrong  name,  the  payee  may  sue  upon  it  in 
his  right  name,  alleging  that  the  note  was  made  payable 
to  him  by  the  name  therein  inserted,  and  he  may  show 
by  evidence  on  the  trial  that  he  was  the  person  intended. 
In  like  manner,  where  the  suit  is  by  an  endorsee  or  trans- 
ferree  of  a  note  purporting  to  be  payable  to  Aaron  Formey, 
and  the  complaint  avers  a  promise  to  pay  Aaron  Formbyy 
by  the  name  of  Aaron  Formey,  the  plaintiff  may  show  by 
evidence  that  Aaron  Formby  was  lhe  person  really  meant. 
Willis  v.  Barrett,  2  Starkie's  R.  29  ;  Moller  v.  Lambert. 
2  Campb.  548;  Leaphardtv,  Sloan,  5  Blackf.  278  ;  Medway 
Co.  v.  Adams,  10  Mass.  360;  Sterry  v.  Robinaon,  1  Day's 
R.  11;  New  York  A f.  8oc.  v.  Varick,  13  Johns.  38  :  Pat- 
terson v.  Crave?,  5  Blackf.  593;  Jester  v.  Hopper,  >s  Kng. 
43:  Leonard  v.  Nelson,  2  Cr.  &  M  689 ;  Bylcs  on  Mills, 
m.  p.  60 ;  Chitty  on  Bills,  (Am.  ed.  1854,  by   Perkfos,) 


.574  SUPREME  COURT 

Jones  v.  Jones'  Executor. 

m.  pp.  154,  5<5l,  566,  625;  Edward*  oh  Bills,  251,  685; 
1  Starkie's  Ev.  472;  Angell  Corp.  §234.  See,  also,  May 
v.  Hewitt,  33  Ala.  166;  Alabama  Coal  Co.  v.  Brainard, 
35  Ala.  476.  It  follows,  that  there  was  no  error  in  the 
several  rulings  of  the  court  here  complaiued  of. 

We  will  not  now  inquire  whether  the  decision  which 
was  made  in  Gayle  v.  Hudson,  (10  Ala.  116,)  is  consistent 
with  the  rule  we  have  just  laid  down.  Unless  there,  is 
something  in  the  nature  of  the  instrument  there  Biied  on, 
the  state  .of  the  pleadings,  or  the  other  facts  disclosed, 
which  distinguishes  that  case  from  this,  and  renders  inap- 
plicable the  rule  above  declared,  that  decision  cannot  be 
sustained  as  a  correct  exposition  of  the  law. 

Judgment  affirmed. 


JONES  vs.  JONES'  EXECUTOR. 

[bill  in'  equity  by  executor,  tor  construction  of  will,  and  3ettli- 
ment  of  Estate.] 

1.  Lapsed  legacies;  statutory  provisions. — Under  section  1605  of  the 
Code,  a  legacy  or  devise  to  a  child  or  other  descendant  of  the  tes- 
tator, who  dies  before  the  testator,  leaving  children  or  other  de- 
scendants who  survive  the  testator,  does  not  lapse,  and  does  not 
Vest  in  the  administrator  of  the  deceased  legatee  or  devisee,  but 
passes  directly  to  his  children  or  other  descendants,  in  the  same 
proportions  as  if  they  took  as  his  heirs-at-lavT  or  distributees  ;  and 
his  widow  takes  no  interest  in  it. 

2.  Emancipation  act  of  I860  not  retroactive. — The  act  of  February  25, 
I860,  "to  amend  the  law  in  relation  to  the  emancipation  of  slaves,"' 
(Session  Acts  1859-60,  p,  28,)  does  not  affect  wills  which  had  been 
admitted  to  probate  before  its  passage. 

Appeal  from  the  Chancery  Court  of  Dallas. 
Heard  before  the  Hon.  James  B.  Clark. 

The  bill  in  this  case  was  filed  by  the  executor  of  the 


OF  ALABAMA.  .r,7f> 


Jones  v.  Jones'  Executor. 


last  will  and  testament  of  Edward  S.  Jones,  deceased, 
against  the  widow,  devisees  and  legatees  of  said  testator 
and  the  widow,  children,  and  personal  representatives  pi 
Richard  Jones,  deceased;  and  sought  a  judiehd construc- 
tion of  the  testator's  will,  and  a  settlement  of  his  estate. 
The  testator  died  in  Dallas  county,  where  he  resided,  in 
December,  I808.  By  his  will,  which  was  executed  in 
March,  1858j  and  admitted  to  probate  in  December,  I 
said  testator  devised  and  bequeathed  the  greater  part  of 
his  estate,  both  real  and  personal,  to  his  only  son,  Rich- 
ard Jones;  and  made  provision  for  the  emancipation  of 
Severn!  slaves,  directing  their  removal  to  a  non-slave  bo  I  dr 
ing  State,  and  the  payment  of  a  pecuniary  legacy  to  each 
of  them.  Richard  Jones  died,  intestate,  a  few  weeks  be- 
fore the  testator,  leaving  a  widow  and  two  infant  children 
as  his  hei'rs-at  law  and  distributees.  The  testator's  widow 
dissented  from  his  will;  and  her  share  of  the  estate  was 
allotted  to  her  in  this  suit,  without  objection  from  any  of 
the  other  parties.  The  chancellor  held,  that  the  legacy 
and  devise  to  Richard  Jones,  under  section  1605  of  the 
Code,  did  not  lapse  b}  his  deatli  before  the  testator,  and 
did  not  pass  directly  to  his  children,  hut  vested  in  his  ad- 
ministrator, to  be  administered  and  distributed  by  him 
under  the  statute  regulating  the  distribution  of  iu 
estates;  and  this  part  of  the  chancellor's  decree  is  here 
led  as  error  by  the  children. 

K.  W".  Phttos,  for  the  appellants.— Section  1005  of  the 
Code  was  designed  to  promote  equality  in  the  distribu- 
tion of  estates.  The  evil  to  be  remedied  was,  that  where 
a  testator  directed  his  property  to  be  divided  equally  be- 
tween his  two  children,  the  law  would  carry  the  direction 
into  effect,  if  both  the,  children  survived  him;  but,  if  one 
of  the  children  died  before  the  testator,  the  surviving 
child  would  take  three-fourths  of  the  whole  etifate,  (that 
ie-half  under  the  will,  and  one  fourth  under  the  Stat* 
uteof  distribution,)  while  the  descendants  ot  the  d< ceased 
child  would  take  only  the  remaining  fourth.  But  it  was 
no  part  of  the  object  of  the  statute  to  provide  tor  the  wi- 


576  SUPREME  COURT 


Jones  v.  Jones'  Executor. 


<lo\v  or  creditors  of  the  deceased  legatee;  for  their  exist- 
ence, in  the  absence  of  children  or  other  descendants,, 
does  not  prevent  the  lapse  of  the  legacy.  The  statute 
expressly  declares,  that  the  legacy  "vests  in  such  child," 
&c. ;  and  the  last  clause  was  simply  intended  to  show  the 
proportion  in  which  the  several  children  should  take.  To 
make  it  vest  in  the  administrator,  would  subject  it  to  the 
claims  of  the  widow  and  creditors,  and  would  contravene 
the  express  words  of  the  statute.  For  decisions  upon 
similar  statutes,  see  Fisher  v.  Hill,  7  Mass.  86 ;  Yeates  v. 
Gill,  9  B.  Monroe,  203  ;  Newbold  v.  Pritchett,  2  Wharton, 
46;  Scheiffelin  v.  Keesler,  5  Rawle,  115.  The  English 
statute,  on  which  are  based  the  cases  cited  by  the  chan- 
cellor, declares  that  the  legacy  "shall  take  effect  as  if" 
the   legatee   had   died    immediately  after  the  testator. — 

2  Jarman  on  Wills,  533. 

Jno.   T.    Morgan,  contra,  cited  Johnson  v.    Johnson, 

3  Hare,  157  ;  In  re  Moore,  10  Hare,  178  ;  Griffiths  v.  Gale, 
12  Sim.  351  ;   13  Jurist,  421;  18  Law  Journal,  361. 

A.  J.  WALKER,  C.  J.— [June  20,  1861.]— We  have 
attentively  considered  the  learned  and  able  opinion  pro- 
nounced by  the  chancellor,  but  it  has  failed  to  convince 
us  of  the  correctness  of  the  conclusion  attained  by  him. 
We  regard  section  1605  of  the  Code  as  forbidding  the 
lapse  of  a  devise  or  legacy,  because  the  legatee  or  devisee, 
being  a  descendant  of  the  testator,  died  before -the  testa- 
tor, it  such  legatee  or  devisee  left  a  descendant.  We  fur- 
ther regard  it  as  substituting  the  descendants  of  the  leg- 
atee or  devisee,  for  such  legatee  or  devisee,  to  the  right 
of  receiving  the  legacy  or  devise;  and  providing  for  an 
apportionment  among  such  descendants,  of  the  property 
bequeathed,  in  a  manner  conformable  to  the  law  which 
would  have  governed,  if  the  devisee  or  legatee  had  sur- 
vived the  testator,  and  died  intestate.  That  section  of 
the  Code  is  in  the  following  words:  "When  any  estate, 
real  or  personal,  is  devised  or  bequeathed  to  a  child,  or 
other-descendants  of  the  testator,  and  such  legatee  or  de- 


OF  ALABAMA.  577 


Jones  v.  Jones'  Executor. 


visee  dies  in  the  life-time  of  the  testator,  leaving  a  child 
or  other  descendant  surviving  such  testator,  such  legacy 
does  not  lapse,  but  vests  in  such  child  or  other  descendant,  as 
if  such  devisee  or  other  legatee  had  survived  the  testator 
and  died  intestate."  No  importance  can  he  attached  to 
the  want  of  the  word  "devise,"  in  conjunction  with  the 
word  "legacy,"  in  that  part  of  the  section  which  declares- 
that  "such  legacy  does  not  lapse."  The  context  supplies 
that  word,  and  the  section  must,  he  construed  as  if  the 
reading  of  it  were,  "such  legacy  or  devise  does  not  lapse," 
&c.  We,  therefore,  can  make  no  distinction,  in  the  opera- 
tion of  the  statute,  between  devises  and  legacies. 

If  the  statute  had  stopped  with  the  announcement  that 
the  legacy  or  devise  should  not  lapse,  it  would  probably 
have  iol lowed,  that  the  subject  of  the  devise  or  legacy 
would  have  passed  as  by  descent  from  the  devisee,  or  gone 
into  administration  as  part  of  the  personal  estate  of  the 
deceased  legatee.  If  the  statute,  not  stopping  with  the 
mere  prohibition  of  the  laps?,  had  then  proceeded  to  de- 
clare that  the  devise  or  legacy  should  take  effect  as  if  the 
death  of  the  legatee  or  devisee  had  happened  immediately 
after  the  death  of  the  testator,  it  would  have  been  plain 
that  the  descendants  of  the  devisee  or  legatee  could  only 
\tako  as  heirsor  distributees  under  such  devisee  or  legatee. 
With  that  feature,  the  statute  would  indicate  a  purpose 
to  make  the  operation  and  effect  of  the  bequest  precisely 
what  they  would  have  been  if  the  devisee  had  survived 
the  testator.  Prohibiting  the  lapse,  and  including  that 
feature  as  to  the  effect  of  the  devise,  and  omitting  what 
follows  after  the  prohibition  of  the  Lapse,  our  statute 
would  have  been,  so  far  as  it  pertains  to  the  question  in 
hand,  identical  with  the  33d  section  of  the  English  statute 
of  1  Vic.  eh.  26,  under  which  it  has  even  been  held,  that 
property  bequeathed  to  a  child,  who  died  before  the  tes- 
tator, would  be  transmitted  by  the  will  of  the  deceased 
child.— 1  Jar.  on  Wills,  (marg.)  311,  812;  2  ib.  (m.)  726; 
Johnson  v.  Johnson,  3  Hare,  l.">7.  Our  statute  departs 
from  the  tenor  of  the  English  statute,  where  the  clause 
prohibiting  the  lapse  ends.     It  omits  the  emphatic  decla- 


578 SUPREME  COURT 

Joftes  v.  Jones'  Executor. 

ration  of  the  English  statute,  as  to  the  manner  in  which 
the  devise  or  legacy  shall  take  effect;  hut,  in  the  place  of 
it,  Bays,  that  the  legacy  or  devise  shall  vest  in  the  de- 
scendants left  by  the  legatee  o?  devisee,  as  if  such,  devisee 
or  legatee  had  survived  the  testator  and  died  intestate. 
This  variance  from  the  language  and  departure  from  the 
tenor  of  the  English  statute,  forbid  that  we  should  take 
the  construction  of  it  as  our  guide.  The  legacy  or  devise, 
under  our  statute,  must  vest  in  the  descendants  of  the 
devisee  or  legatee,  and  it  must  vest  as  if  the  devisee  or 
legatee  had  survived  the  testator',  and  died  intestate.  The 
legacy  or  devise  must  vest  in  the  persons  named,  and  it 
must  vest  as  if  the  specified  contingency  had  occurred. 
Can  we  find  an  harmonious  effect  for  hoth  these  require- 
ments of  the  statute?  We  do  not  accomplish  that  object, 
if  we  make  the  descendants  of  the  legatee  or  devisee  take 
under  sueh  legatee  or  devisee  as  heirs  or  distributees.  If 
the  descendants  so  take  the  personal  property,  a  legacy 
would  not  vest  at  all  in  the  descendants  of  the  legatee, 
hut  would  vest  in  his  administVator,  for  the  purposes  of 
the  administration,  and  the  descendants  would  only  re- 
ceive any  residuum,  which,  upon  the  settlement  of  the 
administration,  might  be  for  distribution. — Reese  v.  Har- 
ris, 27  Ala.  301.  The  law  would  cast  the  title  upoa  the 
administrator;  and  thus  the  legacy  would,  in  fact,  vest  in 
the  administrator,  in  contravention  of  the  expr< ss  com- 
mand ol  tht;  statute  that  it  should  vest  in  the  descendants 
of  the  legatee;  and  if  the  estate  should  be  insolvent,  tfeiB 
descendant  would  he  denied  even  a  remote-, be nefit  from 
property  which  the  law  declares  shall  be  vested  in  him. 
It  is  apparent  that  such  a  view  of  the  law  would  impair 
the  force  of  one  of  its  features,  and  in  some  cases  utterly 
destroy  the  effect  of  that  feature.  On  the  other  hand,  we 
think  the  words,  "as  if  such  devisee  or  legatee  had  sur- 
vived the  testator,  and  died  intestate,"  have  an  office  as- 
signed them*  perfectly  consistent  with  their  import,  if  we 
understand  them  as  laying  down  a  rule  for  dividing  the 
property  among  the  descendants.  It  vests  in  them  as  if 
the  devisee  or  legatee  had  died,  intestate,  after  the  testa- 


* 


OF  ALABAMA.  679 


Jones  v.  Jones'  Excutor. 


tor;  that  is,  it  vests  in  them  in  such  shares  or  propor- 
tions as  if  the  property  had  come  to  them  as  heirs  and 
distributees  of  the  legatee  or  devisee.  This  construction 
of  the  statute,  doing  violence  to  none  oi  its  words,  al- 
lows an  harmonious  operation  to  all  its  parts.  For  these 
reasons,  we  adopt  it,  and  decide,  that  the  children  of 
Richard  Jones  must,  as  devisees  or  legatees  of  the  testator, 
take  the  property,  real  and  personal,  bequeathed  to  said 
Richard,  to  the  exclusion  of  Richard's  widow  and  admin- 
istrator. Our  conclusion  in  this  case  is  also  sustained  by 
the  Pennsylvania  and  Kentucky  decisions  in  reference  to 
a  somewhat,  similar  statute,  collected  on  the  brief  of  the 
appellant's  counsel.  Descendant,  in  the  statute  which  we 
have  been  construing,  can  not  be  understood  to  include 
the  widow  of  the  legatee  or  devisee.  The  natural  signi- 
fication of  the  word  is  not  broad  enough  to  embrace  the 
widow,  and  there  is  nothing  in  the  context,  to  force  upon 
the  word  a  meaning  differing  from  its  natural  import. 

[2.]  The  act  of  2oth  February,  18G0,  entitled  "an  act 
to  amend  the  law  in  relation  to  the  emancipation  of 
slaves,-'  does  not  affect  the  bequest  in  the  will  of  F.dward 
S.  Jones,  in  relation 'to  the  emancipation  of  slaves. — Acts 
3.  That  will  became  effectual,  at  least,  upon 
its  admission  to  probate;  and  as  it  was  admitted  to  pro- 
bate the  passage  of  the  act  above  named,  it  is  ex- 
i  from  the  operation  of  that  act  by  the  5th 
section. — Hall's   Heirs  v.  Hall's   Executors,  at  this  term. 

\Vvd>  not  notice  in,  this  opinion  any  other  question 
1  bv  the  assignments  of  error,  because  no  other  ques- 
tion i ''d  bv  the  counsel,  either  in  oral  ar- 
gument, or  in  tin*  hr 

R  and  remanded. 


580  SUPREME  COURT 


McQ-ehee  v.  Rump. 


McGEHEE  vs.  RUMP. 

[action  for  breach  of  warranty  of  soundness  of  slave.] 

1.  Admissibility  of  parol  evidence  to  affect  bill  of  sale. — If  the  parties  to 
a  contract,  for  the  sale  or  exchange  of  two  slaves,  recijxrocally  ex- 
ecute to  each  other  bills  of  sale,  which  show  on  their  face  that  the 
transaction  was  a  sale  ;  and  an  action  is  afterwards  brought  on  one 
of  those  bills  of  sale,  to  recover  damages  for  a  breach  of  the  war- 
ranty of  soundness  contained  therein, — parol  evidence  is  admis- 
sible, to  show  that  the  contract  was  in  fact  an  exchange,  and  not  a 
sale. 

2.  Difference  between  sale  and  exchange  ;  validity  of  sale  of  slave  by  un- 
licensed negro-trader. — A  contract  for  the  exchange  of  two  slaves,  of 
unequal  values,  is  not  converted  into  a  sale,  by  the  payment  of  a 
sum  of  money  for  the  difference  of  value,  and  the  insertion  of  a 
money  value  as  the  consideration  in  tho  bill  of  sale;  and  on  the 
other  hand,  if  the  transaction  was  really  a  sale  of  one  of  the  slaves, 
whicli  was  void  by  statute,  (Code,  \\  309,  400,)  because  the  vendor 
was  an  unlicensed  neuvo-tiader,  the  acceptance  of  another  slave, 
in  part  payment  of  the  price,  could  neither  change  the  nature  of 
the  contract,  nor  render  it  valid. 

Appeal  from  the  Circuit  Court  of  Macon. 
Tried  before  the  Hon.  Nat.  Cook. 

This  action  was  brought  by  Allen  C.  McGehee,  against 
James  Rump,  to  recover  damages  for  a  breach  of  war- 
ranty of  the  soundness  of  a  slave  named  Myra,  alleged  to 
have  been  sold  by  defendant  to  plaintiff  on  the  29th  Jan- 
uary, 1854.  No  pleas  appear  in  the  record.  On  the  tiial, 
as  the  bill  of  exceptions  shows,  the  plaintiff  read  in  evi- 
dence, after  proving  its  execution,  the  bill  of  sale  execu- 
ted to  him  by  the  defendant,  (which  is  copied  in  the 
opinion  of  the  court,)  and  then  adduced  evidence  tending 
to  show  the  unsoundness  of  the  slave  at  the  time  of  the 
sale.  The  defendant  then  read  in  evidence,  after  proof 
of  its  execution,  a  bill  of  sale  executed  to  him  by  the 
plaintiff  for  a  slave  named  Viney,  (which  is  also  copied 
in  the  opinion  of  the  court,)  and  proved    by  one  Foster, 


OF  ALABAMA.  581 


McGehee  v.  Rump. 


who  was  a  subscribing  witness  to  both  bills  of  sale,  "that 
the}7  were  both  signed  and  delivered  on  the  same  day,  and 
at  the  same  time;  that  lie  (witness)  understood  from  both 
parties,  at  the  time,  that  they  had  swapped  negro  girls,  and 
that  the  defendant  gave  the  plaintiff  some  $200  differ- 
ence between  the  girls."  "It  was  admitted,  that  the 
plaintiff,  at  the  time  of  said  trade,  was  a  negro-trader, 
residing  in  Columbus,  Georgia,  and  had  not  taken  out  a 
license  to  sell  said  girl  Viney.  This  was  all  the  evidence 
upon  the  matter,  as  to  whether  said  trade  was  a  sale  or 
an  exchange  of  slaves.  The  court  thereupon  charged  the 
jury,  that  if  said  bills  of  sale  were  executed  at  the  same 
time,  and  were  in  fact  parts  of  the  same  transaction,  and 
constituted  the  transaction,  then  the  contract  between 
the  parties  was  a  sale,  and  not  an  exchange  of  slaves; 
and  that  the  plaintiff  could  not,  by  parol  evidence,  ex- 
plain or  contradict  the  bills  of  sale,  so  as  to  show  that 
the  transaction  evidenced  by  them  was  an  exchange." 
To  this  charge  the  plaintiff  excepted,  and  he  how  assigus 
the  same  as  error. 

Cloiton  &  Ligonv  for  appellant,  contended — 1st,  that 
the  transaction  between  the  parties,  as  evidenced  by  the 
bills  of  sale  alone,  was  an  exchange,  and  not  a  sale  of 
slaves  ;  and,  2d,  that  if  the  bills  of  sale  showed  the  con- 
tract to  be  a  sale,  parol  evidence  was  admissible,  to  show 
that  it  was  in  fact  an  exchange;  citing  the  following 
authorities  :  Strong  v.  Gregory,  19  Ala.  146;  Ilamner  v. 
Smith,  22  Ala.  433;  Saunders  v.  Saunders,  20  Ala.  710  ; 
Pollard  v.  Ma.Jdox,  28  Ala.  321;  Ecklesfe  Brown  v.  Car- 
ter, 26  Ala.  .563. 

Goldthwaite,  Rice  &  Semple,  contra,  cited  Gunter  r. 
Leckey,  30  Ala.  501  ;  Ridgway  v.  Bowman,  7  Cushing, 
268;  Small  v.  Quincey,  4  Green!.  497  ;  Bradford  v.  Bush, 
15  Ala.  322;  West  v.  K.-lly,  19  Ala.  363;  Bishop  v. 
Hampton,  19  Ala.  792 ;  Bayard  v.  Malcolm,  1  Johns. 
467  ;  Brigham  v.  Rogers,  17  Mass.  571;  Brooks  v.  Malt- 
bie,  4  Stew.  &  P.  06  ;  Pay-ant  v.  Ware,  1  Ala.  160  ;  Hair 
v.  LaBrouee,  10  Ala.  548;  Spann  v.  Cole,  13  Ala.  637. 


582  PREME  O 


M.t  i.'hfo  v.  Hump. 

'ONE,  J.— [.Inly  !>,  IS6I.3 — This  record  |  but 

n  pi-i  lion.     The  plaintiff  wm  ft  negro-trader,  liv- 

ing in  the  State  of  Georgia.  He  instituted  suit  to  rec< 
of  defendant  damages  for  a  breach  of  warranty  of  sound* 
ness  of  a  slave  named  Myra.  The  defendant's  hill  of  sale  is 
as  follows:  "Received  from  Allen  C.  MfcGehee six  hun- 
dred dollars,  for  ne:_rro  girl  Myra,  twelve  years  old.  The 
right  and  title  of  the  said  girl  I  do  warrant,  ami  defend 
agajf  8t  the  claims  of  all  persons  whomsoever,  and  warrant 
sound,  and  healthy,  both  in  body  and  mind  ;  as  witness,"  SO. 
Ootemporaneoasly  with  the  execution  of  this  hill  of  sale 
by  defendant,  the  plaintiff  executed  to  him  a  bill  of  sale, 
as  follows:  "  Received  from  James  Rump  a  negro  girl 
by  the  name  of  Myra,  in  part  payment,  and  two  hundred 
dollars  in  money,  full  payment  for  a  negro  girl  Viney, 
thirteen  years  old.  The  right  and  title  of  the  said  slave 
we  do  warrant  and  defend  against  the  claims  of  all  pier- 
sons  whosoever,  and  warrant  sound  and  healthy,  both  in 
body  and  mind;  as  witness,"  fee.  Both  hills  of  sale  were 
under  seal.  The  trade  was  made  in  Macon  county,  Ala- 
bama ;  and  the  plaintiff  had  obtained  no  license  to  sell, 
or  to  offer  said  slave  lor  sale.  The  defense  relied  on  in 
the  court  below  was,  that  the  bill  of  sale  on  which  the 
action  was  founded  was  executed  in  the  purchase  of  the 
slave  Viney  ;  and  that  the  sale  by  plaintiff  was  void  as  to 
him,  the  seller,  under  section  400  of  the  Code. — SeeGun- 
terv.  Leckey,  :'.<»  Ala.  591.  In  avoidance  of  this  defense, 
the  plaintiff  offered  parol  proof,  tending  to  show  that  the 
real  transaction  between  the  parties  was  an  exchange  of 
slaves,  and  not  a  sale.  The  ruling  of  the  circuit  court 
excluded  this  evidence  from  tin-  jury,  and  this  presents 
the  sole  question  for  our  consideration. 

There  arc  few  questions  of  evidence  on  which  more 
has  been  said,  thnn  that  which  seeks  to  vary  by  parol 
the  terms  of  a  written  contract;  and  we  may  add,  there 
are  few  legal  quest  ions  on  which  there  is  a  greater  con- 
flict of  the  authorities.  As  early  as  1823,  Ch.  J.  Tilgh- 
nian  characterized  the  adjudications  on  this  question  as 
a  "  wilderness  of  cases ;"  nor  has  modern  jurisprudence 


OF  ALABAMA.  583 


>!<•< tehee  v.  Ramp. 


blazed  a  clear  path  through  that  wildernejs.  We  will 
not  attempt  the  task  ourselves,  further  than  may  be  ren- 
dered necessary  by  the  wants  of  this  case. 

There  is  no  repugnancy  of  decision  on  the  general  prop- 
osition, that  parol  proof  shall  not  be  heard,  in  a  court  of 
law,  to  vary,  enlarge,  or  diminish  the  binding  obligations 
of  a  written  contract,  as  between  the  parties.  In  suits 
on  such  written  contracts,  if  there  be  no  question  of  fraud 
in  the  execution  of  t lie  instrument,  the  parties  must  #and 
or  fall  by  the  evidence  they  have  furnished  of  their  own 
contract;  and  what  the  terms  of  that  contract  are,  is  a 
question  ot  law  for  the  court,  and  not  a  question  of  fact 
for  the  jury.  But,  when  the  question  presented  is  not 
among  the  controlling  or  primary  purposes  of  the  writ- 
ing, but  concerns  an  incident,  rather  than  the  direct  ob- 
and  aim  of  the  contract,  less  .stringency  of  rule  has 
generally  been  enforced.  Here  commences  the  conflict 
of  authorities,  which,  for  the  welfare  and  repose  of  society, 
it  were  well  to  have  reconciled.  We  think  we  are  in  safe 
bounds,  when  we  assert  that,  in  the  advancing  history  of 
both  England  and  the  most  of  the  States  of  America,  we 
iver  a  disposition  in  the  courts  rather  to  relax  the 
rule,  than  to  make  it  more  stringent. 

The  decided  weight  of  the  modern    authorities,  as  our 
after  citations  will  si  •     thatthe  consideration  clause 

of  a  deed  is  open  to  the  influence  of  parol  proof,  except 
for  two  purposes :  first,  it  is  oof  permissible  tor  a  party 
to  the  deed  to  prove  B  different  consideration,  if  such 
change  vary  the  legal  effect  of  the  instrument;  and 
second,  the  grantor  in  a  deed,  who  acknowledges  the  re- 
ceipt meat  oftl  si  ion,  will  not  he  alio 
bydi  _;-i.;:  t,  to  'stahlish  a  resulting  trust  in 
■      v.  <                :>}  Ala.  W9  :    h 

1.4  Phil.  I'.v.  (0.  *    II.  N(  ition 

of  18,    . 

The  pl  pory  tht 

inly    not    |  or    dt  tinite.       I  I  "ally 

which  if  sd  com;  i  d  as 

soon  k    upon  I  turnout ;   and 


581 SUPREME  COURT 

AlcG-ehee  v.  Rump. 


quently  have  also  an  indirect  or  incidental  effect,  which 
is  brought  to  view  by  proof  of  some  outside  or  extrinsic 
fact.  Does  the  principle  include  both,  or  only  the  first 
named  of  these  classes  of  cases  ?  On  principle  it  would 
seem  obvious,  that  parties  to  a  deed  would  have  in  con- 
templation the  effect  of  the  instrument  as  a  transfer,  or 
muniment  of  title;  and  hence,  to  allow  parol  proof  to 
vary  or  add  to  its  provisions  or  stipulations  any  term,  con- 
dition, or  fact,  which  would  change  either  the  quality  of 
the  title  conveyed,  or  the  binding  covenants  of  the  gran- 
tor, would  let  in  all  the  mischiefs  which  the  rule  under 
discussion  was  intended  to  guard  against. —  See  Murphy 
v.  Br.  Bank,  16  Ala.  90. 

But  both  principle  and  authority,  as  we  conceive,  pro- 
claim a  different  rule,  when  the  proof  offered  does  not 
tend  to  change  the  covenants,  or  to  vary  the  title  con- 
veyed by  the  deed,  but  simply  to  repel  an  inference  to  be 
drawn  from  some  extrinsic  fact.  Such  fact  is  brought  to 
the  notice  of  the  court  by  extrinsic  proof,  in  the  absence 
of  which,  the  deed  would  be  amply  operative  as  a  con- 
tract of  bargain  and  sale.  The  parties,  in  drawing  their 
contracts,  are  not  presumed  to  have  had  in  view  these 
extrinsic  facts  ;  and  hence  should  not  be  concluded  by 
apparent  facts,  which,  in  the  absence  of  the  extrinsic 
fact,  have  the  same  legal  significance  as  those  which  the 
party  seeks  to  prove. 

In  speaking  of  the  effect  of  recitals  in  deeds,  Mr.  Green- 
leaf,  after  enumerating  several  classes  of  these  recitals, 
among  which  is,  "the  number  of  tons  in  a  vessel  char- 
tered by  the  ton,"  adds — "  these  are  but  incidental  and 
collateral  to  the  principal  thing,  and  may  be  supposed 
not  to  have  received  the  deliberate  attention  of  the  par- 
ties." These,  he  declares,  are  not  within  the  rule  which 
excludes  .pa-rol  proof. — 1  Green  1.  Ev.  §  26. 

In  the  notes  of  Oowen  &  Hill  to  Phillipps  on  Evidence, 
•the  principle  is  thus  stated:  "The  American  cases  re- 
gard the  ordinary  clause  of  a  deed  of  conveyance,  ac- 
knowledging the  receipt  of  the  consideration  money,  as 
essential,  in  connection  with  its  other  terms,  to  express 


OF  ALABAMA. 585 

McGehee  v.  Rump. 


the  intention  in  regard  to  the  estate  or  interest  granted 
or  transferred ;  and  hence,  so  far,  and  as  between  the 
parties  or  their  privies,  it  is  not  open  to  impeachment, 
save  in  equity.  But,  when  the  intention  in  this  respect 
is  not  disputed,  nor  the  operation  of  the  conveyance,  as 
such,  sought  to  be  changed,  the  clause  in  question  is 
treated  as  formal  merely,  like  the  date,  and  may  be  con- 
tradicted or  varied  by  parol."—  Vol.  4,  ed.  of  1850,  583. 
In  another  place,  the  same  annotators  said,  "  The  English 
decisions,  therefore,  whatever  may  be  said  of  their  dicta, 
do  not  appear  to  have  gone  beyond  the  point  of  disal- 
lowing proof  to  show  a  consideration  ot  a  different  spe- 
cies, so  as  thereby  to  change  the  nature  of  the  deed." 
And  they  instance  the  case  of  a  deed,  which  on  its  face 
purported  to  be  a  sale  for  value,  and  which  could  not 
operate  as  such.  In  such  case,  the  English  rule  would 
forbid  that  the  deed  should  lie  set  up  as  a  voluntary  con- 
veyance.—Vol.  4,  p.  619;  see,  also,  ib.  584-5. 

In  McCrea  v.  Punnort,  (16  Wend.  473,)  the  court  of 
errors  of  New  York,  Judge  Cowen  delivering  the  opinion, 
said  :  "A  party  is  estopped  by  his  deed,  lie  is  not  to  be 
permitted  to  contradict  it;  so  far  as  the  deed  is  intended 
to  pass  a  right,  or  to  be  the  exclusive  evidence  of  a  con- 
tract, it  concludes  the  parties  to  it.  But  the  principle 
goes  no  further."  In  that  case,  it  was  held,  that  although 
the  deeds  to  the  lauds  expressed  money  paid  as  the  consid- 
eration, it  was  competent  to  show  that  the  real  consider- 
ation was  iron  of  a  specified  quantity,  valued  at  a  stipu- 
lated price.  The  case  last  sited  contains  an  elaborate 
discussion  of  both  the  principle  and  \\iq  adjudged  c. 

In  the  caseof  Gully  v.  Grubbe,  (1  J.J.  Marshall,  887,) 
the  supreme  court  of  Kentucky,  speaking  of  this  ques- 
tion,   said:   "Receipts,    and    other   writings   which    only 

acknowledge  toe  existence  of  a  simple  fact,  each  as  the 
payment  of  money  for  example.,  may  be  Bttsceptible  of 
explanation,  and  Liable  to  contradiction  by  w:ti 

In  the  same  case  it  w  .  that    "whenever    a  right  is 

*«*ti  d,  or    reated,  or  cxiingni.-hcd,  by  contract  or  other- 
wise, and  writing  is  employed  f>r  that  purpose,  parol  tes- 
33 


586 SUPREME  COURT 

McOebee  v.  Rump. 

timony  is  inadmissible  to  alter  or  contradict  the  legal  or 
common-sense  construction  of  the  instrument." — See, 
also.  Jack  v.  Dougherty,  8  Watts,  151;  Gale  v.  William- 
son. 8  Mees.  &  Welsby,  405  ;  Mildmay's  case,  1  Rep.  176; 
Belden  v.  Seymour,  8  Conn.  -504;  Harvey  v.  Alexander, 
1  Rand.  219;  Bullard  v.  Briggs,  7  Pick.  538;  Pott  v. 
Todhunter,  2  Coll.  'Ch.  76;  Steele  v.  Worthington, 
1  &  2  Ohio  Rep.  350;  Bedell's  rise,  7  Rep.  39;  Rex  v. 
Scaminonden.  1  T.  R.  474 ;  Rockhill  v.  Spraggs,  9  Ind. 
30  ;  Meeker  v.  Meeker,  16  Conn.  387  ;  Pritchard  v.  Brown, 
4  X.  H.  397;  Morse  v.  Shattuck,  lb.  229  ;  Rexv.  Lainden, 
8  T.  R.  376;  2  Path.  Ob.  181;  Wilkinson  v.  fecott, 
17  Mass.  257;  2  Hill's  Pr.  292;  Stallvvorth  v.  Preslar, 
34  Ala.  511  ;  Tyler  v.  Carleton,  7  Greenl.  175  ;  Burbank  v. 
Gouhl,  15  Maine,  118;  Wallis  v.  Wall  is,  4  Mass.  135; 
Gale  v.  Colmer,  18  Pick.  397;  Ilayden  v.  Mentzer, 
10  Serg.  &  R.  329. 

We  have  cited  and  collated  this  immense  array  of  au- 
thorities, mainly  for  the  purpose  of  showing  the  spirit  of 
the  rule  under  discussion.  Perhaps  sach  elaboration  was 
not  necessary  in  this  case.  In  the  case  of  Eckles  v.  Car- 
ter, (26  Ala.  5ti4,)  this  court  passed  on  the  precise  ques- 
tion we  are  considering,  except,  that  the  object  of  the 
proof  in  that  case  was  not  to  repel  an*  illegality,  brought 
to  view  by  extrinsic  evidence,  hut  to  let  in  a  defense 
which  was  otherwise  illegal.  Much  of  the  reasoning, 
however,  employed  in  that  case,  is  equally  applicable  to 
this  ;  an-d  we  think  the  true  rule  is  there  stated — namely: 
"  Where  the  deed  is  not  impeached  (for  fraud),  we  are 
unable  to  perceive  any  reason  why  any  consideration, 
which  is  sufficient  to  support  the  deed,  may  not  be  shown. 
In  such  a  case,  we  see  no  middle  ground  to  occupy,  and 
must  either  hold  that  the  clause  is  conclusive,  operating 
by  way  of  estoppel,  or  must  throw  it  entirely  open  to 
explanation."  And  this  court,  in  that  case,  fully 
adopted  the  doctrine  of  McCrea  v.  Purmort,  and  threw 
open  the  consideration  clause  to  explanation,  in  cases 
where  the  deed  was  not  attacked  for  fraud. 

Some  of  the  cases  cited  above,  particularly  those  from 


OF  ALABAMA.  587 


Mc(«ehee  v.  Rump. 


Maine,  Connecticut  and  New  Hampshire,  carry  the  doc- 
trine farther  than  \vc  need  go,,  and  farther  than  we  are 
inclined  now  to  commit  ourselves.  We  cite  them,  how- 
ever, with  others,  as  showing,  conclusively,  that  the  doc- 
trine contended  for  by  appellee  is  opposed  to  the  weight 
of  authority.  That  there  are  authorities  opposed  to  this 
view,  we  will  not  deny.  In  some  of  them,  the  conflict  is 
more  apparent  than  real.  Many  of  them  state  the  prin 
ciple  loosely,  while  most  of  them,  on  a  close  criticism, 
may  be  reconciled  with  the  principle  wc  have  announced. 
"We  cite  them  that  the  profession  may  examine  what  has 
apparently  been  said  on  the  other  side  of  this  question. 
Whitlock  v.  Whitlock,  0  Cow.  270;  Garrett  v.   Stuart, 

1  McC.  514;  Betts  v.  Union  Bank,  1  H.  &  Gill,  186; 
Watt  v.  Grove,  2  Sch.  &  Lef.  500;  Bridgmau  v.    Green, 

2  Vesey,  sr  .627 ;  Ilinde  v.  Longworth,  11  Wheaton,  212; 
Jackson  v.  Delancey,  4  Cow.  427.  Most  of  these  cases 
were  marked  bjT  strong  badges  of  fraud,  and  are  there- 
fore within  Judge  Goldthwaite's  exception,  as  laid  down 
in  Eckles  v.  Carter. 

The  following  authorities  relate  to  a  different  principle, 
and  are  not  in  point:  Ridgway  v.  Bowman,  4  Cushing, 
(Mass.)  271;  Small  v.  Quincey,  4  Greenl.  497;  Coal  k 
Banking  Co.  v.  Ryerson,  8  Dutch.  466-7.  See,  also, 
1  Md.  Ch.  Dec.  394  ;  2  Tay.  Ev.  §  818. 

Where  a  deed  to  lands  has  been  executed,  reciting  that 
the  consideration  money  has  been  paid,  the  plain  effect 
of  such  deed,  unexplained  by  outside  proof,  is  to  vest  au 
absolute  and  indefeasible  title  in  the  purchaser.  Yet,  on 
bill  filed  to  assert  the  vendor's  lien,  parol  testimony  is 
admissible,  to  show  that  the  purchase-money  has  not 
been  paid,  and  thus  contradict  the  recital.  This  principle 
is  so  well  settled,  that  no  one  now  questions  it. — See 
Saunders  v.  llendrix,  5  Ala.  221;  8  Phil.  Ev.,  C.  &  IL 
Notes,  (ed.  of  1850,)  384.  The  incidental  effect  of  this 
proof  is,  to  convert  an  absolute  title  into  an  interest 
closely  akin  to  that  of  a  mortgagor's  equity  of  redemp- 
tion. Directly,  it  does  not  affect  the  right  and  title  con- 
veyed by  the  instrument ;  but  indirectly  it  defeats  it. 


5S3  SUPREME  COURT 


Mitchell  v.  Turner  et  al. 


in  this  case,  the  proof  made  by  Mr.  Rump — namely, 
that.  Mr.  MeGehee  was  a  negro-trader,  without  license  to 
sell — did  not  directly  impair  or  affect  the  title  which  Mr. 
MeGehee  had  conveyed  to  him,  or  the  covenants  con- 
tained in  that  title.  The  influence  it  exerted  was  but  an 
incident.  The  fact  proposed  to  be  proved  by  the  plain- 
tiff' was  also  incidental  in  its  character,  and  should  have 
been  admitted. 

[2.]  If  the  spirit  and  substance  of  the  transaction,  with- 
out which  no  trade  would  have  been  made,  was  an  exchange 
of  slaves,  and  the  money  was  employed  as  the  menus  of 
equalizing  the  supposed  values,  then  the  fact  that  a  money 
value  was  inserted  In  the  bills  of  sale  can  not  convert  it 
into  a  sale.  Ti.e  practice  of  inserting  a  money  value  in 
title  deeds,  when  an  exchange  only  is  intended,  is  conve- 
nient, and  is  believed  to  be  very  common.  It  cannot 
convert  areal  exchange  intoa  sale. — See  Gunter  v.  Leckey, 
30  Ala.  596;  Addis  on  Contr.  154;  1  Parsons  Contr. 
437,  note;  Anon.,  3  Salk.  157;  Mitchell  v.  Gile,  "12  TSt'm 
H.  395;  Vail  v.  Strong,  10  Verm.  457.  If,  on  the  other 
hand,  the  real  transaction  was  a  sale,  although  another 
piece  of  property  was  taken  in  part  payment,  then  any 
attempt  to  screen  it  from  public  scrutiny  by  a  pretended 
exchange  would  be  abortive.  Whether  this  was  a  sale  or 
an  exchange,  it  is  not  for  us  to  determine,,  aud  we  inti- 
mate no  opinion  upon  it. 

Reversed  and  remanded. 


MITCHELL  vs.  TURNER  et  al. 

.    [action  on  sheriff's  official  bond. J 

1.  Action  at  law  between  co-evreties  on  official  bond, — One  of  the  sureties 
on  a  sheriff's  official  bond  cannot  maintain  an  action  at  law  on  the 
bond,  against  the  other  sureties,  for  their  principal's  default. 


OF  ALABAMA.  589 


Mitchell  v.  Turner  et  al. 


2.  What  is  good  pica  in  tar.— That  the  plaintiff  is  one  of  the  obligor* 
on  thft  bond  which  is  the.  foundation  of  the  suit,  is  properly  pleaded 
in  bar,  and  not  in  abatement. 

Appeal  from  the  Circuit  Court  of  Tallapoosa. 
Tried  before  the  Hon.  lioBflRl  DoUGHBBTY. 

Tins  action  was  brought  by  William  M.  A.  Mitchell, 
against   Green   L.    Turner,    Simon    B.    Smith,   James   T. 
Shackleford,    William   Paige,  and  Wyatt  H.  Whatley,  as 
thesuretiesoq  theoffieial  bond  of  Hugh  Lockett,  deceased, 
late  sheriff  of  said  county.     The  complaint  averred  the 
execution  of  the  bond,  set  out  the  condition,  and  alleged, 
as  a  breach  thereof,  the  collection  of  money  by  two  of  the 
sheriff's  deputies,  under  process  on  a  judgment  in  favor 
of  the  plaintiff,  and  their  failure  to  pay  it  over  to  him  on 
demand.     The   defendants    craved  oyer  of  the  bond  and 
condition,  (which  were  thereupon  set  out,)  and  pleaded  in 
bar,  that  the  plaintiff  was  one  of  the  joint  makers  and 
obligors  of  said  bond,  and   equally   liable  with   them  for 
any  breach  of  the  same,  and  was  the  identical  W.  M.  A. 
Mitchell    whose   name    was    signed    to  said    bond.     The 
plaintiff"  demurred  to  this  plea,  "because  the  same  is  no 
answer  to  the  complaint,  and  because  it  does  not  present 
a  valid  defense  to  the  action,  and  because  it  is  insufficient 
in  law."     The    court   overruled    the   demurrer,  and   the 
plaintiff  was  thereby  compelled  to  take  a  nonsuit,  with  a 
bill  of  exceptions;  and  he  now  assigns  as  error  the  ruling 
of  the  court  on  the  demurrer. 

J.  Falkner,  for  appellant. — 1.  Under  the  provisions  of 
the  Code,  joint  bonds,  covenants,  and  promisee  in  writing, 
are  declared  several,  as  well  as  joint;  and  the  plaintiff 
may,  at  his  election,  sue  one,  several,  or  all. — Code, 
L43,  2149, 2154, 11  .  .131.  The  sureties  on  official 
bonds  have  no  right  of  action  against  each  other,  until 
they  have  actually  paid  oil  the  liability;  and  if  they  could 
not  support  a  suit  until  payment,  tiny  could  not  set  up 
the  right  by  way  id' plea. — Code,  §  143. 

-.  If  the  matter  of  the  pica  u  as  available  at  all,  it  could 


590 SUPREME  COURT 

Mitchell  v.  Turner  et  al. 

2 . 

only    be    by   plea   in    abatement. — Boswell   v.    Morton, 
20  Ala.  235;  Henderson  v.  Hammond,  19  Ala.  340. 

Brock  k  Barnes,  contra,  cited  Chandler  v.  Shehan, 
7  Ala.  251;  Tindall  v.  Bright,  Minor,  103;  Ramsey  v. 
Johnson,  Minor,  418;  Matn waring  v.  Newman,  2  Bos.  & 
P.  120. 

• 

R,  W.  WALKER,  J.— [July  11,  1861.]— The  English 
rule  is,  that  a  person  cannot  be  a  plaintiff  in  an  action 
against  others,  on  a  contract  made  by  those  others  jointly 
with  him. — Mainwaring  v.  Newman,  2  Bos.  &  Pull.  120; 
Moffatt  v.  VonMullingen,  2  Chitty's  Rep.  539;  3  Rob.  Pr. 
301.  Without  at  this  time  committins:  ourselves  to  this 
rule,  in  the  broad  terms  in  which.it  is  here  stated,  we 
are  satisfied  that  one  of  the  sureties  on  a  sheriff's  bond 
cannot  maintain  an  action  at  law  on  such  bond  against 
his  co-sureties.  The  plaintiff,  being  co-surety  with  the 
defendants,  and  bound  equally  with,  them  to  make  good 
the  sheriff's  default,  cannot  recover  the  whole  amount  of 
them.  The  loss  must  be  apportioned  among  the  sureties, 
and  this  a  court  of  law  is  incompetent  to  do. — See  Tin- 
dall v.  Bright,  Minor,  103;  Chandler  v.  Shehan,  7  Ala. 
251;  Carroll  v.  Bowie,  7  Gill,  34,  (41-3;)  Milburn  v. 
CodcT,  7  B.  k  Cr.419. 

[2.]  There  is  nothing  in  the  objection,  that  the  plea 
was  a  plea  in  abatement,  and  should  have  been  sworn  to. 
A  plea  in  abatement  ought  to  give  a  better  writ;  but  the 
matter  alleged  in  this  plea  shows  that  the  plaintiff'  can 
have  no  action  at  all,  and  was  therefore  properly  pleaded 
in  bar. — Mainwaring  v.  Newman,  2  Bos.  &  Pull.  121; 
Moffatt  v.  Vpn  Mullingen,  2  Chitty,  539. 

Judgment  affirmed. 


OF  ALABAMA.  591 


McLemore  v.  Nuckolls. 


McLEMORE  vs.  NUCKOLLS. 

[dbtimlk  tor  SLAVES,  AGAINST  SIIE1UFK.J 

1.  Decree  in  chancery  construed  ax  authorizing  issue  of  fi./a.  —  A  decree 
in  chancery,  rendered  on  pleadings  and  proof,  underabill  filed  by 
tlic  secured  creditors,  against  the  trustees  in  a  deed  of  trust,  charg- 
ing them  with  waste,  negligence,  and  misapplication  of  the  assets  ; 
adjudging  that,  the  complainants  are  entitled  to  relief,  and  order- 
ing the  master  to  state  an  account  of  the  several  debts  due  to  the 
complainants  respectively,  and  the  several  amounts  with  which 
each  trustee  is  chargeable,  ami  to  ascertain  the  pro-rata  dividend 
of  each  creditor;  and  a  subsequent  decree,  confirming  the  muster's 
report, — though  informal,  are,  when  construed  together  and  in 
connection  with  the  lull  and  the  master's  report,  equivalent  to  an 
order  for  the  payment  of  the  several  sums  of  money  ascertained  to 
be  due  from  each  of  the  trustees  to  each  of  the  creditors,  and  suffi- 
cient to  authorize  the  issue  of  a/;",  fa. 

2.  Admissions  of  cestui  que  trust  admissible  against  />  ustec. — in  an  action 
brought  by  the  trustee  of  a  married  woman,  suing  for  nor  use,  her 
admissions  are  competent  evidence  against  him. 

8.  Admissibility  of  bill  m  chanterv  as  evidence  in  another  suit. — A  bill  in 
chancery,    sworn   to   by    the  complainant,    is  competent    evidence 
;..-t  him  in  another  suit  ;  and  the  fact  that  the  complainant  is  a 
-  covert,  suing  by  her  next  friend,  does  not  vary  (he  principle. 
mpeteney  of  distributee  as  witntss  for  estate.— On  the  death  of  a 
married  woman,  pending  an  action  brought  by  her  trustee  for  her 
use,  a  distributee  of  her  estate  is  not  a  competent  witness    for  the 
plaintiff. 
:">.    Admissibility  dence. — In  detinue  by  the  wife's  trustee 

Huhi^  f>»f  her  use,  to  recoverjslaves  which  he  had  bought  at 
under  mortgage  executed  by  the  husband,  and  winch  were  after. 
.  wai  nd  sold  by  the  defendant,  as  sheriff,  under  execution 

against  the  husband  ;    the   defendant  having  introduced 
lend  iw,Jthat  the  money,  with  which  the  plaintiff  paid  for 

•<  furnished  by    the    wile,  and    was    in    fa  t,  as    to  the 
.::tors  of  the  husband,  hi?  property.--  the  ree>.rd  of  a  chai 
luit,  instituted  by  the.  plaintiff  individually  niter   hi.-  purctu 
the  slaves  at  the  mortg  the  purpose  "t   foreclosing  a 

mortgage  oh  other  slav<    •  I  by  the  husband;  to  whi<  1.    uitthe 

defendant  wi  rty,  and  in  which  the  plainti 

with   certain    m \<  paid  him  by  the   wife),  is  not    competent   evi- 


m s r  1  >} I E M  E  COURT 

McLemore  v.  Nuckolls. 


*  f<>r  tli"  plaintiff,  "  to  show  that  creditors  of  the  husband  had 
aires  ved  the  money  paid  by  the  wife  to  the  plaintiff:"  ai 

to  the  defendant,  it  is  res  inter  alios  arta. 

■i!  conveyances  ;  who  are  creditors  or  debtors. — A  1rustc\  un" 
der  ri  deed  of  trust  for  the  benefit  of  creditors,  becomes  their  debtor 
from  the  time,  he  receives  money  which,  by  the  terras  of  tne  deed, 

it  to  be  paid  over  to  them,  wtthout  any  subsequent  violation  of 
duty  on  his  part,  or  demand  made  by  them;  and  the  fact  that  the 
creditors  are  non-residents,  does  not  affect  the  principle. 
7.  Abstract  charge. — A  charge  to  the  jury  cannot  be  considered  ab- 
stract, when  the  bill  of  exceptions  recites  evidence  tending  to  show 
the  existence  of  the  facts  on  which  it  is  predicated*,  ai   1  !i'  the 

rd  fails  to  show  Buch  evidence,  the  appellate  court  will  pre- 
sume that  a  charge  given  was  not  abstract,  when  the  bill  of  ea 
tions  does  not  purport  to  set  out  all  the  evidence. 

chii/  of  voluntary  conveyance, — A  contract  between  husband  and 

.  by  which  a  separate  estate  is  created  in  the  wife  in  the  future 
earnings  of  herself  and  her  domestic  servants,  is  void  as  to  the  ex.* 
isting  creditors  of  the  husband  ;  and  slaves  purchased  for  her  by  a 
third  person,  and  paid  for  with  her  earnings  under  such  contract, 
are  subject  to  the  existing  debts  of  the  husband,  like  any  other 
property  purchased  for  her  with  the  husband's  money. 
'.'.  J  imption  in  favor  of  judgment. — When  a  charge  is  requested, 
which,  on  the  facts  hypothetic-ally  stated,  asserts  a  correct  legal 
proposition  ;  but  those  facts  might  be  met  and  avoided  by  proof  of 
other  facts,  which  would  render  the  charge  erroneous,— if  the  bill 
of  exceptions  does  not  purport  to  Set  out  all  the  evidence,  the  ap- 
pellate court  will  presume,  in  favor  of  the  ruling  of  the  primary 
court,  that  such  additional  facts  were  proved. 
10.  G  ndusivcness'of  admission  under' oath. — When  a  bill  in  chancery, 
under  oath,  is  offered  in  evidence  against  the  complainant  in  a 
Bi\bse  pient  suit,  he  is  not  thereby  estopped  from  denying  its  aver* 
ments. 

.Appeal  from  the  Circuit  C«urt  of  Montgomery. 
Trier]  before  the  Hbn.lS.  D.  Hale. 

Tim  action  was  brought  by  Moses  McLemore,  as  trus- 
tee for  Mrs.  Matilda  S.  Pinkflton,  the  wife  of  James  K. 
Pinkston,  and  suing  for  her  aa.e,  against  George  13.  Nuck- 
olls, to  recover  a  negro  woman,  named  EJaster,  together 
with  damages  for  Iter  detention;  and  was  commenced  on 
the  10th  January,  1854,  The  defendant  pleaded  non 
detinet,  and  Issue  was  joined  on  that  plea.     It  appeared  ou 


OF  ALABAMA.  508 


McLemore  v.  Nuckolls. 


the  trial,  from  the  evidence  adduced  by  tlie  plaintiff,  that 
the  slave  originally  belonged  to  said  James  K.  Pinkston, 
■who,  on  the  2d  December,  1844,  mortgaged  her,  with  two 
other  slaves,  to  the  Branch  Bank  at  Montgomery,  to  se- 
cure a  bona -/nic  debt  which  he  owed  to  said  bank.  The 
mortgage  contained  a  power  of  sale,  under  which  the 
slaves  were  sold  on  the  5th  February,  1849,  and  were  bid 
off  aftlie  sale  by  the  plaintiff,  at  the  price  of  $1325.  The 
assistant  bank-commissioner,  by  whom  the  sale  was  made, 
executed  a  bill  ol  sale  for  the  slaves  to  the  plaintiff';  and 
the  latter  gave  his  bill  of  exchange,  accepted  by  Ana 
Harper,  dated  the  5th  February,  1850,  (?)  and  payable  on 
the  1st  January  next  afterdate,  for  the  price;  which  bill, 
not  being  paid  at  maturity,  was  renewed  by  another  bill 
on  Ann  Harper,  and  the  latter  bill  was  afterwards  paid 
by  plaintiff.  On  the  0th  February,  1S49,  the  plaintiff  ex 
ecuted  a  bill  of  sale  for  said  slaves,  at  the  specified  price 
of  $1422  17,  to  William  J.  McLemore,  who,  on  the  same 
day,  and  at  the  same  specified  price,  reeonveyed  them  to 
the  plaintiff,  "in  trust  for  the  sole  and  separate  use  of 
Mrs.  Matilda  S.  Pinkston,  and  to  be  disposed  of  as 
she  may  direct,  by  will  or  otherwise,  at  her  death,  amongst 
her  childreu  then  living." 

In  the  latter  part  of  December,  1853,  or  about -the  1st 
January,  1854,  the  defendant,  as  sheriff  of  Macon  county, 
1  an  execution  on  the  slave  now  in  controversy,  as 
the  property  of  dames  K.  Pinkston;  and  sold  said  slave, 
under  said  lev}-,  on  the  1st  Monday  in  February,  1854. 
This  execution  was  issued  on  a  decree  in  a  chancery  cause, 
in  which  Br-  Solomon  nd  others  were  plain- 

tiffs, and  said  Pinkston  and  one  Whil  were  defend- 

ants. T),<'  bill  in  that  case  was  filed  by  the  complain* 
ants,  on  behalf' of  themselves  and  certain  other  creditors 
of  C.  J*.  McCall  &  Co.j  who  were  secured  by  a  deed  of 
trust  executed  by  said  MoCall  £  I  id  Pinkston  and 

Whitesidesi  aid  trustees  with  waste, 

negligence,  and  misapplication  of  tl  ts  which  had 

e  to  their  hands*  and  sought  an  acooanf  and   settle- 
ment of  the  trust.     The  '  was  dated  and  exc- 


594 ■      SUPREME  COURT     

McLemore  v.  Nuckolls. 

cuted  on  the  3d  February,  1838;  and  conveyed  to 
trustees  a  large  stock  of  goods,  with  the  outstanding  notes 
and  accounts,  and  all  the  other  personal  assets  belonging 
to  said  McCall  &  Co.  as  partners,  in  trust  to  sell,  on  such 
terms  as  the  said  trustees  might  deem  expedient,  and, 
after  paying  the  expenses  incurred  in  the  execution  of 
the  deed,  to  apply  the  residue  of  the  proceeds,  first,  to  the 
payment  of  the  debts  due  from  said  McCall  &  Co.  to  cer- 
tain creditors  residing  in  New  York,  and  the  balance  to 
certain  other  specified  creditors.  The  trustees  accepted 
the  trust,  entered  on  the  execution  of  the  duties  thereby 
imposed  upou  them,  and  sold  the  goods,  &c,  conveyed  to 
them.  At  the  July  term,  1847,  on  hearing  on  pleadings 
and  proof,  the  chancellor  held,  that  the  complainants 
were  entitled  to  relief,  and  ordered  an  account  to  be  taken 
by  the  master,  to  ascertain  the  amount  of  the  trust  funds 
which  had  come  to  the  hands  of  each  of  the  defendants, 
the  amount  due  to  each  one  of  the  complainants  from 
McCall  &  Co.,  and  their  pro-rata  dividend  of  the  funds 
with  which  the  defendants  were  chargeable;  "reserving 
the  question  of  costs,  and  all  other  questions,  for  further 
directions  on  the  coining  in  of  the  report."  The  master 
reported,  at  the  July  term,  1849,  that  there  was  of  the 
trust  funds  the  sum  of  $4,830  27  in  the  hands  of  Pink- 
ston,  and  $4,906  33  in  the  hands  of  Whitesides;  and  also 
ascertained  the  pro-rata  dividend  to  which  each  creditor 
was  entitled  of  these  amounts.  At  the  same  term,  the 
chancellor  confirmed  the  master's  report,  and  adjudged 
the  costs  of  suit  against  the  defendants.  The  execution 
which,  as  above  stated,  the  defendant  levied  on  the  slave 
in  controversy,  was  against  Pinkston  alone,  and  com- 
manded the  sheriff  to  make  the  sum  of  §4,8?0  27,  which 
Brewster,  Solomon  &  Co.  and  other  creditors,  specified  by 
name,  "recovered  of  him  on  the  5th  July,  1847.,  by  a 
decree  of  the  chancery  court,"  &0. 

On  the  trial,  as  appears  from  the  bill  of  exceptions,  after 
the  plaintiff  had  proved  his  own  title,  as  above  stated,  the 
seizure  of  the  slave  by  the  defendant,  her  value,  and  the 
value  of  her  hire,  the  defendant  offered  in  evidence  the 


OF  ALABAMA.  595 


McLemore  v.  Nuckolls. 


deed  of  trust  from  McCall  &  Co.  to  Pinkston  and  White- 
sides;  proved  the  said  trustees'  acceptance  of  the  trust, 
their  sale  of  the  goods,  &c. ;  and  then  offered  in  evidence 
the  record  of  the  said  chancery  suit,  the  execution,  sheriff's 
endorsement  thereon,  &c.  "The  plaintiff  objected  to  the 
introduction  of  the  proceedings  in  said  chancery  suit,  on 
the  ground  that  there  was  no  decree  in  said  cause;  and 
to  said  execution,  on  the  ground  that  there  was  cot  such 
a  decree  as  would  sustain  it,  and  that  said  execution  was 
void."  The  court  overruled  these  objections,  and  admit- 
ted the  evidence;  to  which  the  plaintiff  excepted. 

The  defendant  then  offered  in  evidence  a  transcript, 
duly  certified,  of  a  bill  in  chancery  filed  by  Mrs.  Pink- 
ston, suing  b}r  her  next  friend,  against  her  husband, 
James  K.  Pinkston,  Moses  McLemore,  and  Rebecca 
Smith;  accompanied  by  proof  that  the  slave  Easter,  or 
Esther,  therein  mentioned,  was  the  slave  here  in  contro- 
versy. This  bill  was  filed  on  the  8th  January,  1852,  and 
was  sworn  to  by  Mrs.  Pinkston.  It  sought  to  enjoin  said 
McLemore  and  Rebecca  Smith  from  further  proceedings 
at  law,  to.subjoet  certain  slaves  and  other  personal  prop- 
erty, in  which  the  complainant  claimed  a  separate  estate, 
to  the  satisfaction  of  their  several  judgments  against  said 
James  K.  Pinkston.  It  alleged,  in  substance,  that  said 
Pinkston,  in  1831'  or  1840,  placed  four  domestic  servants 
under  the  sole  control  of  the  complainant,  under  an  agree- 
ment that,  after  defraying  all  the  family  expenses,  the 
balance  of  the  proceeds  of  their  labor  and  her  own  might 
be  retained  by  her  for  her  sole  and  separate  use  and  ben- 
efit; that  under  this  contract,  by  the  exercise  of  industry 
and  economy,  she  was  enabled  to  realize  a  sum  which, 
after  paying  all  the  current  family  expenses,  and  assisting 
her  husband  in  the  payment  oi  his  debts  and  the  educa- 
tion of  their  children,  amounted,  in  1850,  to  over  (2,000; 
that  in  February,  1840,  laid  McLemore  purchased  for 
her,  at  a  mon .  .  i  Je,  the  slave  Blaster  and  two 
others,  at  the  pri  |1&25j  which   af&OUl  I  she  paid  to 

him  out  of  the  funds  belonging  to  her  separate  estate 
under  the  said  contract  between  herself  and  herhusband. 


598 SUPREME  COURT 

MeLemore  v.  Nuckolls. 

See  the  case  reported  in  31  Ala.  308.  The  plaintiff  ob- 
jected to  the  admissions  of  this  transcript,  on  the  follow- 
ing grounds:  "1st,  because  it  was  only  the  admission  of 
aferne  covert,  and  was  therefore  incompetent;  2d,  because 
Pinkston'8  title  was  only  equitable,  and  was  not  the  sub- 
ject of  litigation,  and,  consequently,  was  not  an  issue  be- 
fore the  jury;  and,  3d,  because  Mrs.  Pinkston  was  not  a 
party  to  the  suit,  and  her  admissions  were  not  evidence." 
The  court  overruled  all  these  objections,  and  admitted 
the  transcript;  and  the  plaintiff  excepted. 

It  was  admitted,  that  Mrs.  Pinkston  died,  in  July, 
1857,  in  Mississippi,  where  she  and  her  husband  then  re- 
sided. The  plaintiff  offered  said  James  K.  Pinkston,  her 
husband,  as  a  witness.  The  defendant  objected  to  his 
competency,  on  the  ground  that,  by  the  laws  of  Missis- 
sippi, he  waa  one  of  the  distributees  of  her  estate;  and 
read  in  evidence  the  statutes  of  Mississippi,  regulating 
the  distribution  of  intestates'  estates;  and  it  was  agreed, 
that  these  statutes  might  be  read  in  this  court,  on  appeal, 
from  the  Mississippi  Code,  as  if  they  had  been  incorpora- 
ted in  the  bill  of  exceptions.  The  court  suttained  the 
objection  to  the  competency  of  the  witness,  and  excluded 
him;   to  which  the  plaintiff  excepted. 

It  was  admitted,  that  the  plaintiff  had  collected  about 
§2,000,  by  suit,  from  Mrs.  Ann  Harper,  as  the  acceptor 
of  the  hill  of  exchange  given,  as  above  stated,  for  the 
three  slaves  bought  by  him  at  Ihe  mortgage  sale.  "To 
prove  that  the  creditors  of  James  K.  Pinkston  had 
already  received  from  the  plaintiff' the  money  paid  to  him 
by  Mrs.  Pinkston,"  the  plaintiff  offered  in  evidence  the 
record  of  a  chancery  suit,  instituted  by  himself,  individu- 
ally, against  said  James  K.  Pinkston  and  others.  The 
bill  in  that  case  was  tiled  for  the  purpose  of  foreclosing  a 
mortgage  on  several  slaves,  which  was  executed  by  said 
James  K.  Pinkston,  on  the  19th  May,  1845,  and  the  law- 
day  of  which  was  the  1st  January,  1846.  The  mortgage 
was  given  to  Graham  &  Rogers,  to  secure  the  payment  of 
a  promissory  note  for  $1,000;.  and  was  assigned  by  them, 
on  the  20th  March,  1847,  for  valuable  consideration,  to 


OF  ALABAMA.  59T 


McLemore  v.  Nuckolls. 


Solomon  Thompson,  whose  administrator  assigned  the 
same,  on  the  12th  February,  1840,  for  valuable  consider- 
ation, to  said  McLemore.  In  May,  1849,  the  slaves  were 
sold  under  executions  against  said  Pinkston;  and.  the 
several  purchasers  at  the  sale  were  made  defendants  to 
the  bill.  A  decree  pro  covfesso  was  entered  against  Pink- 
ston. The  other  defendants  answered;  alleging  that  the 
money,  with  which  McLemore  purchased  the  mortgage, 
was  furnished  to  him  by  Pinkston,  through  his  wife,  and 
that  the  transaction  was  intended  to  place  the  slaves  be- 
yond the  reach  of  Pinkston's  creditors.  On  the  final 
hearing,  on  pleadings  and  proof,  the  chancellor  held,  that 
the  mortgagor  was  entitled  to  a  credit  for  the  money  ad- 
vanced by  Mrs.  Pinkston  to  McLemore,  but  ordered  a 
foreclosure  as  to  the  balance  of  the  purchase-money  paid 
by  McLemore;  and  his  decree  was  affirmed  by  this  court? 
on  appeal,  at  its  June  term,  1857. — See  the  case  reported 
in  31  Ala.  26G.  On  motion  of  the  defendant,  the  court 
excluded  the  record,  and  the  plaintiff  excepted. 

The  court  charged  the  jury,  "that  from  the  time  Pink- 
ston received  any  money  under  the  assignment  from 
McOall  &  Co.,  which  was  to  be  applied  to  the  payment  of 
the  debts  specified  in  the  schedule,  he  became  the  debtor 
of  those  creditors,  and  the  fact  that  they  resided  in  New 
York  made  no  difference;  and  that  if  he  thus  became  in- 
debted to  them,  and  the  slave  sued  for  was  transferred  or 
conveyed  by  him  to  his  wife,  under  the  agreement  set 
forth  in  the  bill  in  chancery  filed  by  her  against  him  and 
others,  or  was  bought  by  McLemore,  for  her  separate  use, 
with  the  earnings  derived  by  her  from  the  property  which 
she  received  from  said  Pinkston  under  stid  agreement, 
and  said  agreement  was  made  after  said  Pinkston  became 
so  indebted,  then  the  said  slave  would  be  liable  to  tho 
payment  of  a  judgment  or  decree  obtained  by  any  such 
creditors  again  s1  Bald  Pinkston,  founded  on  said  indebt- 
edness/' The  plaintiff  excepted  to  this  charge,  and  re- 
quested the  court  to  instruct  the  jury,  "that  if  the  cred- 
itors under  the  assignment  resided  In  Xew  York,  Pink- 
ston, the  trustee,  who  resided  in  Montgomery,  where  the 


598 SUPREME  COURT 

McLemore  v.  Nuckolls. 

assignment  was  made  and  the  business  transacted,  was 
not  in  default  for  not  paying  them,  until  they  demanded 
payment  of  him,  and  was  not  their  debtor,  in  the  sense 
the  law  requires,  until  he  failed  to  pay  on  demand."  The 
court  refused  to  give  this  charge,  and  the  plaintifl:  ex- 
cepted to  its  refusal. 

The  plaintiff  also  requested  the  following  charges  in 
writing: 

"1.  If  the  jury  believe,  from  the  testimony,  that  the 
slave  sued  for  belonged  to  James  K.  Tinkston  in  Decem- 
ber, 1844;  that  said  Pinkston,  on  the  2dDecember,  1844, 
executed  in  good  faith  the  mortgage  which  had  been  read 
in  evidence,  to  secure  the  payment  of  the  debts  therein 
described;  that  such  debts  were  due  and  owing  by  him, 
in  good  faith,  to  the  Branch  Bank  at  Montgomery;  that 
afterwards,  Baid  debts  being  unpaid,  said  slave  was  sold 
by  the  assistant  bank-commissioner,  under  said  mortgage, 
to  pay  said  debts,  and  was  purchased  at  said  sale  by  said 
McLemore;  that  said  McLemorc,  on  the  9th  February, 
1840,  executed  to  William  J.  McLemore  the  bill  of  sale 
whieh  had  been  read  in  evidence;  that  said  William  J. 
McLemore,  on  the  9th  February,  1849,  executed  to  said 
plaintiff  the  other  hill  of  sale,  or  deed  for  said  slave,  which 
had  also  been  read  in  evidence;  that  said  plaintifl",  lor  the 
purchase-money  of  said  slave,  gave  said  bank  his  bill  of 
exchange,  accepted  by  Ann  Harper,  and  afterwards  {aid 
said  bill  with  his  own  money,  and  not  with  the  money  of 
James  K.  Pinkston;  and  that  he  has  not  been  repaid  by 
said  James  Tv.  Pinkston,  or  with  money  of  said  Pinkston, 
but  by  Mrs.  Ann  Harper, — then  the  plaintiff  is  entitled 
to  a  verdiet,  if  the  defendant  was  in  the  possession  of  said 
slave  at  the  commencement  of  this  suit. 

"2.  If  the  plaintiff  purchased  said  slave,  at  a  sale  made 
by  the  Branch  Bank  at  Montgomery,  under  the  mortgage 
executed  by  James  K.  Pinkston  to  secure  debts  due  to 
said  bank  in  good  .faith,  and  paid  the  purchase-money 
from  his  own  funds,  and  did  not  use  the  money  of  James 
K.  Pinkston  for  that  purpose,  and  was  not  repaid  by  said 
Pinkston, rnor  with  said  Pinkston's  money,  but  with  the 


OF  ALABAMA.  699 


McLemore  v.  Nuckolls. 


money  or  funds  of  Mrs.  Harper, — then  the  plaintiff  is  en- 
titled to  a  verdict,  if  the  jury  further  believe  that  the 
deed  of  the  bank  to  plaintiff",  of  February  5th,  1819,  was 
then  executed  to  him,  and  that  the  bill  of  sale  from  him 
to  William  ,J.  McLemore,  and  the  deed  from  said  William 
J.  McLemore  to  him,  both  dated  February  9,  1849,  were 
severally  executed  at  that  time,  and  that  the  defendant 
had  the  possession  of  said  slave  at  the  commencement  of 
the  suit. 

"3.  If  plaintiff  purchased  said  slave,  at  a  sale  made  by 
the  Branch  Bank  at  Montgomery,  under  the  mortgage 
executed  by  Pinkston,  which  was  read  in  evidence,  and 
which  was  honestly  made  to  secure  debts  due  from  him 
to  said  bank  in  good  faith,  and  paid  the  purchase-money 
with  his  own  funds,  and  not  with  the  money  of  Pinkston, 
(although  he  may  have  purchased  said  slave  for  the  sole 
and  separate  use  of  Mrs.  Pinkston,  and  at  her  request; 
and  although  Mrs.  Pinkston  may  have  placed  in  his 
hands,  to  buy  said  slave,  money  which  belonged  to  her 
said  husband,  but'whicfa  he  used  in  some  other  way  for 
her;)  and  if  he  has  not  been  repaid  the  money  which  he 
thus  paid  for  said  slave,  by  said  Pinkston,  or  with  money 
or  funds  belonging  to  said  Pinkston;  aud  if  the  several 
instruments  read  in  evidence — the  deed  irom  the  bank  to 
McLemore,  the  deed  from  him  to  William  J.  McLemore, 
and  the  deed  from  William  J.  McLemore  back  to  him — 
were  executed  as  they  purport  to  be;  and  if  the  defend- 
ant was  in  possession  of  said  slave  when  this  suit  was 
commenced, — then  the  plaintiffis  entitled  to  a  verdict. 

"4.  If  Mrs.  Pinkston  placed  money  in  the  plaintiff's 
hands,  for  the  purpose  of  buying  aaid  slave  for  her,  for 
her  sole  and  separate  use,  which  money  was,  in  law,  the 
money  of  her  said  husband  ;  and  plaintiff,  instead  of  using 
said  money  in  the  payment  for  said  slave,  in  fact  paid  for 
her  with  his  own  mone}*,  and  not  with  the  money  or 
funds  of  Pinkston;  and  he  has  never  been  repaid,  cither 
by  Pinkston  or  Mrs.  Pinkston,  or  with  Pinkston's  money, 
for  the  money  thus  paid  out  by  him;  and  if  said  mort- 
gage by  Pinkston  to  the  bank  was  executed,  as  it  pur- 


I SUPREME  COURT 

McLomore  v.  Nuckolls. 

portdl  to  be,  in  good  faith,  to  secure  the  debt*  therein 
stated;  and  said  debts  were  due  by  him,  in  good  faith, to 
su'ul  bunk;  and  the  slaves  therein  mentioned,  including 
the  slave  now  in  suit,  were  sold  under  said  mortgage,  in 
February,  1849,  and  were  bought  at  said  sale,  as  aforesaid, 
by  Moses  McLemore;  and  the  several  instruments  read 
in  evidence — the  deed  from  the  bank  to  Moses  McLemore, 
and  from  him  to  William  J.  McLemore,  and  from  him 
back  to  Moses  McLemore — were  executed  at  the  ^ime 
they  purport  to  have  been  ;  and  said  slave  was  in  the  de- 
fendant's possession  at  the  commencement  ol  this  suit, — 
then  the  plaintiff  is  entitled  to  a  verdict. 

"5.  Although  Mrs.  Pinkston  may  have  made  state- 
ments in  a  bill  in  chancery,  which  were  sworn  to  by  her, 
this  does  not  preclude  her  from  showing  that  she  was 
mistaken:  it  is  only  an  admission,  and  its  being  sworn  to 
only  raises  a  stronger  presumption  of  the  truth  of  the 
statement,  or  of  her  belief  in  its  truth,  but  does  not  con- 
clusively establish  the  truth  of  such  statement,  if  there  is 
sufficient  evidence  before  the  jury  to  satisfy  them  that 
she  was  mistaken,  either  as  to  the  truth  of  the  statement, 
or  as  to  the  inferences  which  she  or  others  might  draw 
from  it. 

"6.  That  the  order,  judgment,  or  decree,  made  in  the 
case  of  Brewster,  Solomon  k  Co.  and  others  against 
Pinkston  and  "Whitesides,  which  had  been  read  in  evi- 
dence, is  not  such  a  final  order  or  decree  that  an  execu- 
tion could  issue  on  it,  except  for  costs. 

"7.  That  the  execution  issued  in  said  cause  is  void. 

"8.  That  the  decree  in  said  cause  cannot  be  looked  to 
or  regarded  by  the  jury  for  auy  purpose,  and  the  execu- 
tion issued  on  it  cannot  be  looked  to  or  regarded  by  them 
for  any  purpose." 

The  court  refused  each  of  these  charges,  and  the  plain- 
tiff excepted  to  their  refusal. 

The  court  charged  the  jury,  at  the  request  of  the  de- 
fendant, "that  if  they  believed,  from  the  testimony,  that 
the  assignment  read  in  evidence  was  executed  at  the  time 
Of  its  date,  and  that  the  debts  mentioned  in  it  were  real 


OF  ALABAMA.  001 

_ 

McLemore  v.  Nuckolls. 


and  botiajide,  and  that  said  Pinkiton  accepted  the  assign- 
ment, and  took  possession  of  all  or  part  of  the  goods  and 
notes  assigned,  and  sold  the  goods  so  taken  possession  of 
in  1838,  and  failed  or  neglected  to  pay  over  the  naoney 
received  from  the  sale  to  the  creditors  who  were  entitled 
to  it  under  said  assignment ;  and  if  they  believe,  also, 
that  the  decree  read  in  evidence  wai  bused  upon  such 
failure  or  neglect,  and  that  an  execution  was  issued  on 
said  decree,  and  was  levied  by  the  defendant,  as  sheriff", 
on  the  slave  sued  for;  and  that  said  slave  was  sold  by  the 
defendant,  under  said  levy;  and  that  said  Pinkston,  iu 
1889  or  1840,  made  with  his  said  wife  the  contract  stated 
in  tne  bill  in  chancery  iu  which  she  was  complainant, 
which  had  been  read  in  evidence  by  the  defendant;  ami' 
that  said  slave  was  purchased  with  the  earnings  of  Mrs. 
Pinkston,  derived  from  said  contract, — then  said  slave 
was  subject  to  the  execution  issued  on  said  decree  in 
chancery  against  said  Pinkston."  The  plaintiff  excepted 
to  the  giving  of  this  charge. 

All  the  rulings  of  the  court  to  which,  as  above  stated, 
exceptions  were  reserved  by  the  plaintiff,  are  now  as- 
signed as  error. 

Thos.  Williams,  and  J  no.  A.  Elmoue,  for  appellant. 
"Watts,  Judoi  &  Jackson,  contra. 

A.  J.  WALKER,  C.  J.— [June  7,  1861.]— It  was  ob- 
jected in  the  circuit  court  that  there  was  no  decree  for 
the  payment  of  money,  upon  which  thd  fieri, facias  levied 
by  the  defendant  could  issue.  We  think  the  decree  of 
the  chancellor  in  which  he  makes  a  reference  to  the  regis- 
ter, and  the  decree  confirming  the  register's  report,  when 
construed  together,and  in  reference  to  the  bill  and  tothe 
report  confirmed,  amount  to  an  order  for  the  payment  of 
the  several  sums  of  money  reported  by  the  register  to  be 
due  by  the  defendants  severally  to  the  respectirr  credit- 
ors, notwithstanding  the  formality  of  the  dec 
Huffaker  v.  Boring,  8  Al.  larlund  v.  Eastland,  Har- 
din, 500;  Honor*'  v.  Coliuesnil,  1  J.  J.  Marsh.  ,r»06. 
39 


SUPKEME  COURT        t..* 


602 

McLemore  v.  Nuckolls. 

[2-3.]  Mrs.  Pinkston  being  the  party  really  Interested, 

and  for  whose  benefit,  the  suit  was  brought,  as  shown  both 
by  the  complaint  and  the  evidence,  her  admissions  were 
competent  evidence  in  favor  of  the  adverse  party.  The 
bill  in  chancery,  which  was  given  in  evidence,  was  swdrn 
to  by  her,  and  was,  therefore,  not  the  mere  allegation  of 
counsel,  but  a  statement  of  facts,  admissible  again  s't.'hfcr. 
Durden  v.  Cleavcbnid,  4  Ala.  225.  Her  coverture  at.  the 
time  when  the  affidavit  was  made  of  the  truth  of  her 
separate  bill,  does  not  exempt  her  from  the  operation  of 
the  rule,  that  declarations  are  evidence  against  parties 
making  them.  The  separate  answer  of  a  feme  covert,  made 
under  oath  by  her,  is  admissible  against  her;  and  so  also 
must  be  her  separate  bill,  when  sworn  to  by  her. — 1  Dan. 
Ch.  PI,  &  Pr.  IDG.  For  these  reasons,  there  was  no  error 
in  the  admission  of  Mrs.  Pinkstoh's  bill  in  evidence 
against  the   plaintiff  in  this  suit. 

[4.]  It  has  been  decided  in  this  State,  that  the  husband 
of  a  distributee  of  an .  estate  would  not  be  a  competent 
witness  for  the  contestants  of  a  will,  where  the  interest 
of  such  distributee  would  be  enlarged  by  the  setting  a^side 
•of  the  will.— Walker  v.  Walker,  34  Ala  469.  Of  course, 
the  distributee  would,  under  like  circumstances,  be  an 
incompetent  witness.  A  recovery  by  the  plaintiff,  in  this 
case,  would  have  precisely  the  same  effect,  in  swelling  the 
distributive  share  of  the  distributees  of  Mrs.  Pinkston's 
estate,  as  the  setting  aside  of  the  will  in  the  case  cited 
would  have  had.  "We  therefore,  decide,  upon  the  author- 
ity of  that  Ciise,  that  a  distributee  of  the  estate  of  Mrs. 
Pinkston  is  an  incompetent  witness  for  the  plaintiff;  and 
thatihere  was  no  error  in  the  refusal  to  permit  James  Iv. 
Pink-ton,  who  was  a  distributee,  to  testily. 

[5.1  The  argument,  upon  which  the  defense  in  thiscase 
rested,  was,  that  the  slave  in  controversy  was  sold  under 
a  mortgage  executed  by  James  K.  Pinkston  ;  that  the 
slave  was  bought  at  that  sale  by  Moses  McLemore  ;  that 
Moses  McLemore  conveyed  the  slave  to  Wm.  J.  McLe- 
more, who  conveyed  her  back  to  Moses  McLemore,  in 
trust  for  the   separate  use  of  Mrs.   Pinkston,  the  wife  of 


•^  OF  ALABAMA. *   003 

•    •  McLemore  v.  Nuckolls. 

James  K.  Pinkston  ;  that  the  money,  with  which  Moses 
McLemore  bought  and  paid  for  the  slave,  wag  furnished 
by  Mrs.  Pinkston  ;  that  this  money,  as  to  the  creditors 
of  James  K.  Pinkston,  was,  Upon  the  principle  settled  in 
Pinkston  v.  McLemore,  (31  Ala.  308,)  the  property  of  the 
husband  ;  that  the  complicated  transaction,  which  resulted 
in  a  conveyance  to  Mrs.  Pinkston,  was  a  contrivance  to 
vest  her  with  the  title  ;  and  that  the  whole  transaction 
amounted  to  nothing  more  than  a  gift  by  James  K.  Pink- 
ston to  his- wife,  which  was  void  as  to  the  debts  under 
which  the  property  was  sold,  because  they  were  existing 
at  the  time  of  that  transaction.  The  plaintitl'  offered  to 
introduce  evidence,  for  the  purpose  of  showing  that  the 
money  received  by  Moses  McLemore  from  Mrs.  Pinkston 
was  not  appropriated  to  the  payment  for  the  slave,  but  in 
a  different  manner.  We  do  not  say  that  the  purpose,  for 
which  the  evidence  was  offered,  was  illegal  ;  but  we  think 
the  means  by  which  it  was  proposed  to  make  the  proof, 
was  wholly  inadmissible.  The  chancery  record,  which 
was  offered  in  evidence  for  that  purpose,  was  res  inter 
dlips-acta&s  to  the  defendant,  and,  therefore,  not  evidence 
against  him  for  any  purpose. 

[6.]  One  of  the  objections  made  to  the  first  charge 
given  by  the  court,  is,  that  a  trustee,  under  a  deed  of  trust 
made  for  the  benefit  of  creditors  residing  in  another  iState, 
4Mb  not  become  the  debtor  of  the  creditors,  when  be  re- 
ceives moneys  which,  by  the  terms  of  the  deed,  were  to  be 
paid  over  to  such  creditors ;  but  that  lie  could  only  be- 
come the  debtor  of  the  creditors,  alter  a  violation  by  the 
trustee  of  his  duties,  or  after  demand  made  by  the  cred- 
itors. This  question  is  conclusively  settled,  adversely  to 
the  appellant  who  makes  the  objection,  by  the  decisions 
of  this  court  in  the  cases  oi  Foot  v.  Cobb,  (18  Ala.  080,) 
and  Gnnnard  v.  Eslava,  cJ'1  Ala.  782.)  In  the  former  of 
ffcfBe  cases,  it  was  decided,  that  an  agent,  who  has  sold 
the  slave  of  his  principal  on  a  credit,  and  promised  to  pay 
the  purchase-money,  when  collected,  to  his  principal,  is, 
within  the  meaning  of  the  statute  of  frauds,  a  debtor; 
and  in  the  latter,  that  the  grantor  in  a  deed  containing  a 


604  SUPREME  COURT  «    J 


McLemore  v.  Nuckolls. 


general  covenant  of  warranty,  there  being  an  outstanding 
adverse  title,  was  a  debtor  of  the  grantee,  within  the 
meaning  of  the  Fame  statute. — See,  also,  Hitchcock  v. 
Lukens,  8  Por.  833.  The  fact  that  the  creditors  resided 
in  another  State,  can  make  no  difference..  No  distinction 
can  be  predicated  upon  the  residence  of  the  creditors. 

[7.]  We  do  Dot  think  this  charge  obnoxious  to  any  of 
the  other  objections  made  to  it.  It  is  certainly  not  ab- 
stract. The  evidence,  according  to  the  bill  of  executions, 
certainly  conduced  to  show,  that  Pinkston,  the  trustee, 
received  money  belonging  to  the  trust  within  three' 
months  after  the  date  of  the  deed  of  trust,  (Feb.  3, 1838;) 
and  the  bill  in  chancery  of  Mrs.  Pinkston  shows,  that  the 
agreement  between  her  and  her  husband  was  made  in 
1839  or  '40;  so  that  the  bill  of  exceptions  positively  in- 
dicates a  tendency  of  evidence  to  support  the  proposition, 
that  the  indebtedness  of  Pinkston  existed  before  the 
agreement  between  himself  and  his  wife  was  made.  If, 
however,  this  were  not  the  case,  we  would  presume,  in> 
favor  of  the  charge,  that  it  was  not  abstract;  there  being 
nothing  in  the  record  to  the  contrary. 

[8.]  In  the  case  of  Pinkston  v.  McLemore,  (31  Ala. 
308,)  it  is  distinctly  decided,  that  the  contract  between 
Pinkston  and  his  wife  was  void,  as  to  the  existing  cred- 
itors of  the  former;  and  that  the  earnings  of  the  wife, 
and  the  servants  put  under  her  control,  under  that  con- 
tract, were,  as  to  such  existing  creditors,  the  property  of 
the  husband.  It  follows,  that  if  the  slave  in  controversy 
was  bought  by  McLemore,  the  plaintiff",  for  the  separate 
use  of  Mrs.  Pinkston,  with  her  earnings  accruing  under 
the  agreement  with  her  husband,  then  the  transaction 
was,  as  to  those  who  were  the  husband's  creditors  at  the 
time  of  such  agreement,  a  purchase  of  the  property  for 
the  wife,  with  the  husband's  money.  The  property  so 
purchased  would,  as  to  creditors,  belong  to  the  husband, 
and  be  liable  to  their  demands.  We  understand  the  charge 
to  assert  nothing  more  than  this. 

[!>.]  The  plaintiff  asked  eight  charges,  which  were 
severally  refused.     The  first  four  of  those  charges  affirm 


OF  ALABAMA.  605 

• JH. — — 

McLeraore  v.  Nuckolls. 


the  plaintiff's  right  to  ft  verdict,  if  the  jury  believe  cer- 
tain facts  therein  specified.  The  facts  specified  in  each 
one  of  those  charges,  whatever  might  be  their  legal  effect, 
it  not  met  and  avoided  by  other  facts,  certainly  do  not  rise 
to  an  irresistible  inference  in  favor  of  the  plaintiffs  right 
to  a  recovery.  For  example  :  if  it  be  conceded  that,  upon 
the  facts  presented  in  each  one  of  those  several  charges, 
a  title,  good  as  to  the  creditors  of  Pinkstou,  would  have 
vested  in  the  plaintiff;  yet  no  right  to  a  recovery  would 
result,  upon  those  facts,  if  it  was  shown  in  reply,  that 
such  title  had  been,  before  the  levy  by  the  defendant,  di- 
vested in  some  legal  manner,  and  vested  in  Pinkston,  the 
defendant  in  execution.  The  bill  of* exceptions  does  uot 
profess  to  set  out  all  the  evidence,  and  we  can  not  pre- 
sume that  it  does. — S.  M.  Ins.  Co.  v.  Holcombe,  35  Ala. 
327.  As  the  facts  upon  which  the  plaintiff,  in  the  charges 
asked,  predicated  his  claim  to  a  verdict,  were  of  such  a 
nature  that  their  legal  effect  would  be  susceptible  of  being  ,'{t 
avoided  by  other  facts;  and  as  the  bill  of  exceptions  does  | 
not  inform  us  whetheror  not  such  other  facts  existed,  we 
can  not  decide  that  the  refusal  of  those  charges  Was  er- 
roneous. We  can  not  presume,  for  the  purpose  of  at- 
tributing error  to  the  court,  the  non-existence  of  the  facts 
requisite  to  justify  those  refusals. — Phillips  v.  Peteet, 
35  Ala.  696;  Kupert  v.  Klston,  ih.  79;  Wynttv.  Stewart, 
34  Ala.  71(3;   l>uekworth  v.  Butler,  31  Ala.  164. 

[10.]  In  refusing  the  fifth  charge  requested,  the  court 
erred.  A  party  is  not  estopped  from  denying  the  aver- 
ments of  a  bill  in  chancery,  although  sworn  to,  when  they 
are  offered  in  evidence,  in  an  independent  suit,  against 
such  party.  The  charge  was  not  abstract;  for  the  bill  of 
exceptions  sets  forth  ovid«  n<  e  of  I  payment  for  the  slave. 
in  a  hill  ofexchai  pted  by  Mrs.  Harper,  which  bad 

collected  by  McLemore  from  the  afceptor. 
m  what  idy  been  said,  n*  to  the  admissibility 

of  the  execution  in  evident,  it  Poults  that  the  6th,  7th, 
and  8th  charges  requested,  were  properly  relus.  1. 

There   was   no  error  in   giving  the  charge  which  wai 


606  %  SUPREME  COURT 


Heath  v.  Devaughn. 


asked    by  the  defendant.     The   reasons  are   indicated   in 
our  remarks  as  to  the  first  charge  given. 
Reversed  and  remanded. 


r 


HEATH  vs.  HE VAUGHN". 

[slander.] 

1.  What  w  >rd»  are  actiomih'.e. — Words  spoken  of  another,  imputing  to 
him  the  statutory  offense  of  trading  with  slaves,  (Code,  £3285,) 
are  not  actionable,  since  the  offense  does  not  involve  moral  turpi- 
tude, and  the  punishment  affixed  to  it  is  not  infamous. 


Appeal  from  the  Circuit  Court  of  Chambers. 
Tried  before  the  Hon.  John  Gjll  Shorter. 


The  complaint  in  this  case  was  in  the  following  words: 
"James  Heath      ^       The  plaintiff  claims   of   the    de- 
vs.  Vfendant  ten  thousand  dollar*  as  dam- 

Samuel  Devaughn.  J  ages  for  falsely  and  maliciously 
charging  him  with  the  crime  of  trading  with  slaves,  by 
speaking  of  and  concerning  him,  in  the  presence  of  divers 
persons,  in  substance  as  follows:  'Have  you  not  been 
trading  with  my  negroes'  ?  (meaning  the  negro  slaves  of 
defendant;)  '  You  have  been  trading,*  with  my  negroes,  you 
old  rascal  ' — to-wit,  on  the  17th  August,  1857. 

"The  plaintiit*  claims  of  the  defendant  ten  thousand 
dollars,  also,  as  damages  for  falsely  and  maliciously  charg- 
ing him  with  the  crime  of  trading  with  slaves,  without 
the  consent  of  the  master,  owner,  or  overseer  of  such 
slaves,  by  speaking  of  iuid  concerning  him,  in  the  pres- 
ence of  divers  persons,  in  substance  as  follows:  'Have 
yon  not  been  trading  with  my  negroes'?  'You  have 
b^efj,*trading  with  my  negroes,  you  old  rascal  *;      '  He  has 


OF  ALABAMA.  *  [607 


'  m  Heath  v.  Devaughn'. 




becu  trading  with  my  negroes  ' — to-wit,'<>n  the  17th  Au- 
gust, 1857." 

The  court  sustained  a  demurrer  to  the  complaint,  ou 
the  ground  that  none  of  the  words  charged  were  action- 
able ;  and  its  ruling  is  hero  assigned  as  error. 

Brock  k  Barsj:s,  for  appellant,  cited  the  following 
cases:  (Jogburu  v.  Ilarwood,  Minor, 'Jo ;  i'erdue  v.  Bur- 
nett, \b,  138;  Ilillhouae  v.  Peck,  2  Stow,  k  I  -John- 
son v.  Morrow,  !>  Porter,  526;  Dudley  v.  Horn,  "J  1  Ala. 
379;  Smith  v.  Gailard,  31  Ala.  4f>;  J3n?soll  v.  Cornell, 
24  Wendell,  3.~»4 ;  Brooker  v.  Coffin,  5  Johns.  188; 
"  13  Johns.  124,275. 

Allison  &  Andrews,  omlr%  cited  Brooker  v.    CoiHu, 

5  Johns.  188;  Widrig  v.  Oyer,  13  Johns,  124;  Martin  v. 
Stillweil,  13  Johns.  275;  Gibbsv.  l)«wey,  5  Qow^c, 
Fox  v.  Vanderbeck,  :i,ol3;  Goodrich  v.  YVoleott, 
3  Cov.v;i,231  :  8.  C,  7  Coweu,  714;  Derdarest  v.  Ilaring; 
ti  i  ..wen,  7b:  Shaker  v.  Kintzer,  1  Binnoy.  542;  Frisbie 
v.  Fowler,  2  Conn.  TUT  :  Chapman  v.  Gillett,  2  Conn. 
01;  Hopkins  v.  Beedie,  1  Caines'  Bop.  347;  Walker 
v.  Winn,  8  Mass.  24.^;  Miller  v.  filler,  8  Johns.  i>6  ; 
Sheely  v.  Biggs,  2  liar.  &  J.  3G3 ;  House  v.  House,  6  liar. 

6  J.  126;    DotltU  v.  Henry,  9  Mass.  262. 

STONE,  J.— [July  5,  INGI.]— We  deem  it  an  Decenary, 
in  tijis  e,ase,  to  consider  whether  the  language  averred  in 
the  complaint  to  have  been  ipoktti  by  the  defendant,  suf- 
ficiently identities  and  the  otfense  denounced  by 
section  8385  of  the  Code.  —  See  Code,  §  2224  ;  Perdue  v. 
Burnett,  Min.  1B8 ;  Stargenegger  v.  Taylor,  2'Brev.  180.. 
On  another  ground,  we  think  the  judgment  of  the  circuit 
court  iiiust  be  ailinued.  The  punishment  for  trading 
illegally  with  slaves  in  a  money  due,. to  which  may  ho 
added  imprisonment  in  the  coUutyjaij,  ndt  exceeding 
months.     A  mere  trading  with  Blaves,  without  the  cbft- 

ut  of  the  master,  own-  r,  or  overseer  of  such  sla\ 
no!,  //< T  .><,  iir,  ■>. .  e  iiiui :.i  turpi!  ude  ;   and  the  pu nidi ment 


I 


608  SUPREME  COURT 


Ex  parte  Northeast  and  South-west  Alabama  Railroad  Company, 
is  not  infamous:,  in  that  sense  which  constitutes  the  words 
actionable  of  themselyes. — Hillhouso  v.  Peck,  2  S.  &  P. 
395;  Johnson  v.  Morrow,  9  Por.  525;  Dudley  v.  Horn, 
21  Ala.  379;  Andres*  v.  TCoppenheafer,  3  S.  &  R.  855; 
McClung  v.  Ross,  5  Bin.  218;  Birch  v.  Benton,  2G  Mo. 
(5  Jones,)  153;  Speaker  v.  McKcnzie,  ib.  255;  Qninn  v. 
O'Gara,  2  E.  D.  Smith,  388  ;  Young  v.  Miller,  3  Hill,  22  ; 
McKee  v.  Ingalls,  4  Srnm.  30.  See,  also,  Shuttleworth 
v.  The  State,  35  Ala.  415,  and  authorities  on  appellee's 
brief. 

Judgment  of  the  circuit  court  affirmed. 


i 


Ex  Pabte    NORTH-EAST    &   SOUTH-WEST  ALA. 
RAILROAD  COMPANY. 

|  AIM'I.TCATION  FOK  1SANDAMUS  TO  CIRCUIT  COURT.] 

1.  Legislative  pou-rr  to  alter  summary  remedy  of  corporation  against  de- 
faulting stockholders. — A  summary  remedy  against  defaulting  stock- 
holders, given  to  a  corporation  by  the  act  of  its  incorporation,  is 
no  part  of  its  corporate  franchises,  and  may  be  altered  or  modified 
by  the  legislature  at  pleasure. 

2.  "  Stay-law"  applies  tu  summary  proceedings. — The.  first  section  of 
the  act  "to  regulate1  judicial  proceedings^"  approved  thoJ8th  Feb- 
ruary, 1861,  and  commonly  known  as  the  "stay-law,"  (Acts  of 
Called  Session  of  1861.  p.  3.)  winch  prohibits  the  rendition  of  .judg- 
ment at  the  return  term  of  any  "suit,  writ,  summons,  complaint 
or  bill,"  applies  to  a  summary  procecdiqg  by  notice  and  motion, 
on  the  part  of  an  incorporated  railroad  company,  against  a  delin- 
quent stockholder;  although  the,  charter  of  the  company  author- 
izes the  rendition  of  judgment  in  its  favor  at  the  return  term 
of  the  notice,  provided  it  has  been  served  twenty  days  previous 
thereto. 

3.  Continuance  and  discontinuance  of  summary  proceeding. — A  summary 
proceeding  by  notice  and  motion  will  be  discontinued,  unless  some 
action  is  had  on  the  notice  at  the  return  term,  although  the  ''stay- 
law  "  prohibits  the  rendition   of  judgment  at  that   term;  yet   the 


OF  ALABAMA.  609 


Ex  parte  North-east  and  South-west  Alabama  Railroad  Company. 


plaintiff  may  keep  alive  his  notice,  by  having  it  docketed,  accord- 
ing to  the  rule  of  practice  adopted  at  this  term,  or  by  some  action 
of  the  court  continuing  its  existence. 

Application  for  a  mandamus  to  the  circuit  court  of  Tut- 
kaloosa,  Hon.  Wm.  S.  Mudd  presiding,  to  compel  that  court 
to  render  judgment  in  a  certain  cause  therein  pending, 
wherein  the  Norrth-east  and  South-west  Alabama  Kail- 
road  Company  was  plaintiff,  and  one  John  McClelland  was 
defendant.  The  plaintiff  was  incorporated  by  an  act  of 
the  legislature  of  this  State,  approved  Dec.  12,  1853, 
(Session  Acts  1853-4,  p.  270  ;)  and  the  14th  section  of  its 
charter  gave  it  a  summary  remedy  by  notice  and  motion 
against  delinquent  stockholders,  or  subscribers  for  stock. 
The  suit  was  commenced  by  notice,  which  was  served  on 
the  defendant  more  than  twenty  days  before  the  return 
term.  The  circuit  court  refused  to  render  judgment  at 
the  return  term,  on  the  ground  that  the  fourth  section  of 
the  "stay-law"  of  February  8,  1861,  applied  to  such 
cases;  and  this  refusal  is  made  the  ground  of  the  present 
application  to  this  court. 

Yj.  W.  Peck,  for  the  motion. 

R.  W.  WALKER,  J.— [July  12,  1861.]— By  the  14th 
section  of  the  act  "to  incorporate  the  North-east  and 
South-west  Alabama  Railroad  Company,"  it  is  provided, 
that  upon  the  failure  of  any  stockholder  to  pay  his  calls 
of  stock,  the  corporation  "may  move  the  circuit  court 
of  the  county  in  which  the  stockholder  resides,  for  judg- 
ment at  the  time  at  which  rucIj  motion  is  made,  twenty 
days'  notice  being  given  him  of  said  motion.  Thenotice 
may  be  issued  by  ihe  president  of  the  corporation,  and 
served  by  the  sheriff,  who  shall  be  entitled  to  one  dollar 
therefor,  to  be  t:ixcd  in  the  bill  oi  ;   and   upon 

judgment,    execution  shall    issue    as   in  other   cases." — 
A        185&-4,  p.  275. 

[1.]  Of  the  power  of  the  legislature  to  control  and 
modify,  at  its    pleasure,   the   summary   remedy   here   be- 


610  SUriiF.MK  COURT 


Ex   pari-   North-east  and  South-west  Alabama- Railroad  Company. 

stowed  upon  the  corporation,  to  the  same  extent  that  it 
can  regulate  the  PfernedfieB  for  the  enforcement  of  con- 
tracts between  private  individual!*,  we  entertain  no  doubt. 
Bank  of'  Columbia  v.  Okely,  4  Wheat.  244-5;  Howard 
v.  Ky.  &  Lou.  ins.  Co.,  13  B.  Monr.  285-6;  AngeU  Corp. 
|  760. 

[2.]  The  question  is,  whether  the  legislature  has  exer- 
cised the  power  here  asserted.  The  court  below  decided 
that  it  has,  and  held,  that  the 'remedy  given  by  the  14th 
section  of  the  act  of  incorporation  is  so  far  affected  by 
the  act  approved  February  8,  1861,  commonly  known  as 
"  the  stay-law,"  that  the  corporation  is  not  entitled  to 
have  its  motion  heard  at  the  term  to  which  the  notice  is 
returned,  although  the  notice  has  been  served  more  than 
twenty  days  before  the  motion  is  made. 

The  1st  section  of  the  act  last  referred  to  provides, 
"  That  hereafter,  in  the  commencement  of  any  mi  it  in 
any  of  the  courts  of  law  or  equity  in  this  State,  the  court 
to  which  any  suit,  writ,  summons,  complaint,  or  bill,  may 
be  made  returnable,  shall  be  deemed  and  held  as  the  re_ 
turn  term  of  sUch  suit,  writ,  summons,  complaint,  or  bill, 
and  the  same  shall  stand  for  trial  at  the  next  succeeding 
regular  term  of  such  court  appointed  by  law  to  be  holdeii 
after  such  return  term  ;  and  the  parties  in  the  law  courts 
shall  not  be  required  to  plead  at  the  first'  term,  except 
that  pleas  in  abatement  shall  be  tiled  as  now  required  by 
law."— Acts  of  Called  Session  of  1861,  p.  3. 

The  language  here  employed  is  certainly  as  compre- 
hensive, as  could  be  desired.  The  words  of  this  section, 
standing  by  themselves,  are  broad  enough  to  embrace  a 
summary  proceeding,  by  notice  and  motion,  in  the  cir- 
cuit court.  '  Such  a  proceeding  is  a  suit  in  a  court  of  law; 
and  the  words  here  used  are,  kkin  the  commencement  of 
any  suit  in  any  of  the  courts  of  law  or  equity  in  this 
State,  the  court  to  which  any  suit,  writ,  summons,  com- 
plaint, or  bill,  may  be  made  returnable,"  &c.  The  use  of 
all  these  terms  clearly  implies,  that  the  statute  was  in- 
tended to  apply  to  suits  not  begun  by  writ,  summons,  or 
<"omplaint,  fca  well  as  to  those  which  are.     In  Alabama  & 


OF  ALABAMA.  611* 


Ex  parte  North-east  and  Soutli-w.st  Alabama  Railroad  Company. 

Tennessee  Rivers  K,  R.  Co.  v.  Harris,  (£5  Ala.  232,)  it  was 
held,  that  a  proceeding  by  notice  and  motion  on,  the  part 
of  a  railroad  company,  against  a  delinqu*  Judder. 

is  "  a  suit"  within  the  meaning  of"/' section  2398  <>f  the 
Code.  So,  in  Ex  parte  Robbins,  (29  Ala.  77,)  it  was  de- 
clared that  an  action,  commenced  by  original  attachment, 
is  within  the  provisions  of  section  2o(JG  of  the  (."ode, 
though  the  words  of  that  section,  literally  const  .rued, 
seem  applicable  only  to  suits  begun  by  summons  and 
complaint.  In  Stanley  v.  Bank  of  Mobile,  (•_'.;  Ada'.  662,) 
it  was  hold  that,  in  a  proceeding  by  notice  and  motion, 
the  issuing  of  the  notice  is  the  commencement  of  the 
suit,  and  prevents  the  statute  of  limitations  from  creating 
a  bar.  although  the  motion  for  judgment  is  afterwards 
delayed.  And  the  notice  serves  the  double,  purpose  of 
writ  and  declaration. — Jemison  v.  P.  k  M.  Bank,  17  Ala. 
754;  Stanley  v.  Bank,  supra;  Griffin  v.  Batik,  6  Ala. 
908  (910). 

But  we  are  not  left  alone  to  the  words  of  the  1st  sec- 
tion. T^he  5th  section  provides,  that  "the  provisions  of 
this  act  shall  not  be  held  to  apply  to  suits  of  any  descrip- 
tions or  judgments  in  any  court  against  defaulting  public 
officers,  for  tailing  to  pay  over  money,  or  for  any  bread) 
of  the  duties  required  of  them  by  law."  It  is  plainly  to 
be  implied  from  this,  that,  but  for  the  special  exception 
here  I  lmmary  proceedings  by  notice  and   motion 

againsi  sheriffs  and  other  public  officers,  would  be  sub- 
ject to  the  provisions  of  this  act.  The  object  of  the  leg- 
islature \.  h  all  suits,  except  those  especially 
ntlBttd  in  the  5th  section  :  and  suits  in  which  judg- 
ment is  obtaiind  on  notice  and  mol  Ion,  are  ;is  much  with- 
on  ot  tiip  law,  a-    those  c<Jmnjenee<3   in   the 

UMia]    mode. 

[3.]  The  rule  declared    in  our  former  decisions,  in  i, 
erence  to  proceedings  by  notice  and  motion,  i-.  th 
:  1  i;i 

it  ;  or  the  law  will  pr<  ned 

his  intention   of  |  rig    on    if,  and    I  |  after- 

wards m-  iurl  I  »r  j  idgiuettt    on    such  motion. — 


612  SUPREME  COURT 


Anderson's  Executor  v.  Anderson's  Heirs. 


Broughton  v.  Bank,  6  Porter,  48  ;  Armstrong  v.  Robert- 
son, 2  Ala.  164;  Gary  v.  Bank,  11  Ala.  771 ;  Evans  v. 
Bank,  12  Ala.  788.  Under  the  act  of  February  8, 1861,  the 
motion  cannot,  as  we  have  seen,  be  heard  at  the  return 
term  of  the  notice,  against  the  objection  of  the  defend- 
ant; but  the  plaintiff  can  keep  alive  his  notice,  by  having 
it  docketed,  according  to  the  rule  adopted  at  this  terra, 
or  by  any  action  of  the  court  continuing  its  existence  ; 
and  it  will  then  stand  for  trial  at  the  next  succeeding 
regular  term. 

As  the  ruling  of  the  circuit  court  was  correct,  we  need 
not  inquire  whether  there  would  have  been  a  remedy  by 
mandamus,  if  it  had  been  erroneous. 

Motion  overruled. 


ANDERSON'S  EX'R  Vs.  ANDERSON'S  HEIRS. 

[final  settlement  of  executor's  accounts.  1 

1.  Married  woman's  law  of  18-48  not  retroactive, — The  law  is  settled  in 
this  State,  that  the  act  of  March  1,  1848,  securing  to  married  wo- 
men their  separate  estates,  does  not  affect  the  husband's  right  to 
reduce  to  possession  his  wife's  choses  in  action  which  accrued  prior 
to  the  passage  of  that  statute. 

2.  Husband's  marital  rights;  reduction  of  wife's  cfiozrs  in  action  to  pos» 
session;  distribution  of  decedent's  estate  by  consent.— Where  the  slaves 
belonging  to  a  decedent's  estate  remain  undivided,  after  the  pay- 
ment of  his  debts  and  the  final  settlement  of  the  administration  on 
his  estate,  and  are  afterwards  divided  by  consent  among  the  sev- 
eral distributees,  who  execute  reciprocal  conveyances  to  each 
other  for  their  respective  shares  ; — the  husband  of  one  of  the  fe- 
male distributees  thereby  acquires  a  complete  equitable  title  to 
the  slaves  allotted  to  him  and  his  wife;  and,  on  his  death,  while 
thus  in  possession  of  them,  his  personal  representative  is  charge- 
able with  them  as  belonging  to  his.  estate. 

3.  Alloa  ance  of  counsel  fees  to  executor. — On  final  settlement  of  the 
accounts  of  an  executor  or  administrator,  he  is  not  entitled   to  a 


OF  ALABAMA.  G1S 


Anderson's  Executor  v.  Anderson's  Heirs. 


credit  for  counsel  fees  paid  by  him  on  account  of  services  rendered 
in  contesting  a  proper  charge  against  him. 
4.  Allowance  of  fees  U<  guardian  ad  litem. — An  executor  or  administra- 
tor can  not  complain,  on  error,  of  the  allowance  of  compensation 
to  the  guardian  ad  litem  of  the  infant  distributees,  on  final  settle- 
ment of  his  accounts  and  vouchers,  since  he  is  not  thereby  preju- 
diced. 

Appeal  from  the  Probate  Court  of  Greene. 

In  the  matter  of  the  estate  of  James  A.  Anderson,  de- 
ceased, on  final  scttement  of  the  accounts  and  vouchers 
of  John  B.  Thompson,  the  executor.  The  executor  asked 
leave  of  the  court  to  amend  his  inventory,  by  striking  out 
the  names  of  several  slaves  which  were  included  thereinr 
on  the  ground  that  they  were  so  included  by  mistake- 
and  to  allow  him  a  credit  for  $450,  paid  by  him  to  the 
testator's  widow,  to  whom  he  had  surrendered  said  slaves, 
for  their  hire  during  the  time  he  had  retained  them.  The 
distributees  resisted  each  of  these  motions,  and  also 
moved  the  court  to  charge  the  executor  with  the  hire  of 
said  slaves  from  the  time  he  delivered  them  up  to  the 
widow.  On  the  evidence  adduced  touching  these  mat- 
ters, (the  material  portions  of  which  are  stated  in  the 
opinion  of  the  court,)  the  probate  court  decided  each  of 
the  motions  against  the  executor;  and  he  reserved  excep- 
tions to  its  several  rulings,  as  also  to  its  refusal  to  allow 
him  a  credit  for  counsel  reea  paid  by  him,  for  services  ren- 
dered on  the  settlement,  and  to  the  allowance  of  compen- 
sation to  the  guardian  ad  litem  of  the  infant  distributees. 
All  the  rulings  of  the  probate  court,  to  which  exceptions 

were  reserved  by  the  executor,  are  now  assigned  as  error. 

■ 

Wm.  P.  Werb,  for  appellant. 
W.  Coleman,  contra. 

A.  J.  WALKER,  C.  J.— [July  18,  1861.]— The  main 
question  in  this  case  is,  whether  the  appellant  was  charge- 
able, upon  the  final  settlement  of  his  accounts,  as  the  ex- 
ecutor of  the  will  of  James  A.  Anderson,  deceased,  with 


6U  SUPREME  COURT 


Anderson's  Executor  ».  Anderson'!?  Heirs. 


a  negro  woman,  Jane,  and  her  children,  and  with  their 
hires.  The  appellant's  testator  died  in  possession  of  the 
slaves,  and  they  were  included  in  the  inventory  as  a  part 
of  the  estate  of  the  deceased.  But  the  executor  after- 
wards delivered  the  slaves  to  the  widow,  and  paid  hire  to 
her  up  to  the  time  of  delivery.  The  executor  was  legally 
justifiable  hi  delivering  the  slaves,  and  paying  hire  for 
them  to  the  widow,  if  they  belonged  to  her.  For  the 
executor  it  is  contended,  that  the  slaves  belonged  to  the 
widow  ;  and  for  the  children,  that  they  were  the  property 
of  the  testator.  It  appears  from  the  bill  of  exceptions, 
that  the  wife  of  James  A.  Anderson,  the  deceased,  is  the 
daughter  of  John  Spaight ;  that  John  Spaight  died  in 
1825,  leaving  a  widow  and  three  children  ;  that  the  slave 
Jane  belonged  to  his  estate;  that  there  was  an  adminis- 
tration upon  the  estate;  that  there  was  a  final  settlement 
of  the  administration,  and  a  discharge  of  the  administra- 
tor and  administratrix;  that  the  debts  of  the  estate  were 
paid;  that  Jane  and  the  other  slaves  of  the  estate  were 
left  undivided,  and,  after  the  settlement  of  the  adminis- 
tration, remained  collectively  under  the  charge  of  the  ad- 
ministratrix, who  was  the  widow  of  the  deceased,  and  her 
sou ;  that  in  1812  the"  appellant's  testator  intermarried 
with  Elizabeth  .V.  Spaight,  one  of  the  distributees  of 
Spaight's  estate,  and  that  then  the  widow  of  Spaight  placed 
Jane  in  the  possession  of  the  testator  and  his  wife,  to  be 
held  as  a  loan  until  a  division  was  had;  that  the  children 
of  Jane  have  been  born  since  that  time ;'  that  Jane  and 
her  children  remained  iu  the  possession  of  James  A.  An- 
derson, the  testator,  until  1840,  when  the  distributees  of 
the  estate  of  Spaight  made,  a  division  of  the  slaves  be- 
longing to  that  estate,  including  Jane  and  her  children, 
and  joined  in  a  conveyance,  reciprocally  conveying  to 
each  other  their  respective  shares ;  that  Jane  and  her  chil- 
dren were  allotted  to  Anderson  and  his  wife,  and  that 
they  afterwards  were  in  the  possession  of  Anderson,  until 
he  died.     Upon   these  facts,  did  Jane  and  her  children 

time  of  his 


belong  to  Anderson,   or  to  his  wife,  at  the  time 
death* 


• 


OF  ALABAMA.  615 


Anderson's  Executor  v.  Anderson's  Heirs. 


Without  deciding  the  point,  we  grant,  for  the  purposes 
of  this  opinion,  that,  until  the  division  in  1849,  the  slaves 
Jane  and  her  children  belonged  to  the  estate  of  John 
Spaight,  deceased  ;  and  that  the  status  of  the  slave  prop- 
erty of  that  estate  was  such,  that  an  absolute  right  to  his 
wife's  interest  in  it  did  not  vest  in  James  A.  Anderson, 
jufe  mttrifi,  before  the  division  in  1840.  By  marriage,  a 
husband  had,  by  the  common  law,  a  right  to  reduce  his 
■wife's  c'hoses  in  action  to  possession,  and  thus  acquire  a 
title  to  the  same  during  the  coverture.  The  first  statute 
securing  to  married  women  their  separate  estates,  was 
adopted  on  the  1st  March,  1848.  From  1842  to  March 
1st,  1848,  James  A.  Anderson's  relation  to  his  wife's  chose 
in  action,  consisting  of  a  lawful  claim  to  a  distributive 
share  of  the  slaves  of  her  deceased-  father's  estate,  was 
governed  by  the  common  law.  The  common  law  gave 
him  a  right  to  reduce  his  wife's  distributive  share  to  pos- 
session, at  any  time  during  the  coverture.  This  right 
was  not  taken  away  by  the  adoption  of  the  married  wo- 
man's law  of  March  1st,  1848,  but  remained  as  complete 
and  effective  after  the  passage  of  that  law,  as  it  was  be- 
fore. The  law  has  been  so  settled  in  this  State  by  the 
decisions  in  Kidd  v.  Montague,  (lit  Ala.  619,)  and  Sterns 
v.  Weathers,  (30  Ala.  712.)  See,  also,  Manning  v.  Man- 
ning, 24  .Ala.  386;  Hardy  v.  Boaz,  20  Ala.  168;  Sharp  v. 
Burns  S  Coh-,  :::,  Ala.  <>V>3. 

It  is  probable,  that  the  position  which  has  been  taken 
in  this  State,  upon  this  subject,  is  irreconcilable  with  the 
position  of  the  appellate  court  of  Mississippi,  in  reference 
to  a  kindred  question. — Clark  v.  MeCreary,  12  S.  &  M. 
347  ;  Duncan  v.  Johnson,  23  Miss.  130.  But  the  doctrine 
announced   by  this  court  irily  controls  the  title  of 

property  to  a  large  extent,  and,  having  been  recognized 
as  law  for  ten  years,  is  not  now  open  for  controversy. 
We  d<«  not  wish,  however,  to  be  understood  as  insinua:  ing 
a  doubt  of  the  correctness  of  it  ;  for  we  are  inclined  to 
think,  that  it  is  sustained  by  satisfactory  reasoning  in  the 
•ion  of  Kidd  v.  Montague,  where  it  was  first  an 
n  on  need. 


616  SUPREME  COURT 

Anderson's  Executor  v.  Anderson's  Heirs. 


[2.]  By  virtue  of  the  principle  above  stated,  James  A. 
Anderson  had  a  right,  notwithstanding  the  act  of  March 
1st,  1848,  to  go  on  and  reduce  to  possession  his  wife's  dis- 
tributive interest  in  the  slaves  of  her  father's  estate  ;  and 
if  he  did  so  in  his  life-time,  a  complete  title  vested  in  him, 
to  the  exclusion  of  his  wife.  The  division,  by  the  con- 
curring consent  of  all  the  distributees,  may  not,  accord- 
ing to  previous  decisions  of  this  court,  have  had  the  effect 
of  vesting  the  respective  distributees  with  the  legal  title. 
But,  as  the  debts  of  the  estate  were  paid,  and  a  final  set- 
tlement of  the  administration  had  been  effected,  the  divi- 
sion, and  reciprocal  conveyances  of  the  distributees,  cer- 
tainly had,  at  least,  the  effect  of  investing  each  with  the 
equitable  title. — Marshall  v.  Crow,  29  Ala.  278;  Vander- 
veer  v.  Alston,  16  Ala.  494  ;  Bethea  v.  McColl,  5  Ala. 
308;  Miller  v.  Eat  ma  Q,  11  Ala.  609.  A  court  of  chan- 
cery would,  upon  a  suitable  application,  have  ordered  ft 
division  ;  and  those  who  were  interested  may,  by  consent, 
do  that  which  might  have  been  accomplished  through  the 
agency  of  a  court  of  chancery.  The  wife  of  James  A. 
Anderson  having,  by  the  division  and  deed,  acquired  a 
title  to  the  slaves  Jane  and  her  children,  even  though  it 
was  purely  equitable,  and  having  possession  thereafter, 
the  husband,  by  virtue  of  his  right  to  reduce  to  possession 
his  wife's  choses,  acquired  at  least  an  equitable  title, 
which  is  not  affected  by  the  married  woman's  law.     Y-4 

The  executor  was  guilty  of  a  palpable  breach  of  duty 
in  surrendering  the  property  thus  held  by  his  testator, 
and  the  court  properly  charged  him  on  account  thereof. 

[3.]  The  executor  was  not  entitled  to  a  credit  for  the 
fee  paid  his  counsel,  on  account  of  services  rendered  in 
stipportof  the  attempt  to  relieve  himself  from  the  charge 
for  the  slaves  Jane  and  her  children.  The  litigation  upon 
that  subject  was  produced  by  his  own  error,  and  by  an 
attempt  to  obtain  the  sanction  of  that  error  by  the  court. 
For  the  fees  of  counsel  in  such  a  litigation,  the  estate 
ought  not  to  be  charged. — Smith  v.  King,  at  June  term, 
1860. 

[4.]  If  there  was  any  error  in  making  the  allowance  to 


OF  ALABAMA.  617 


Lawrence  v.  Jones. 


the  guardian  ad  litem,  it  was  one  which  did  not  prejudice 
the  appellant. 

It  is  not  necessary  for  us  to  notice  the  rulings  on  ques- 
tions of  evidence.  They  have  not  been  presented  by  coun- 
sel in  argument;  and  it  is  very  clear  that  the  court  has 
committed  no  error  in  those  rulings,  which  would  have 
changed  the  result. 

Affirmed. 


LAWRENCE  v*.  JONES. 

[motion  to  amend  execution.] 

1.  Damages  an  affirmance  $f  judgment. — On  the  affirmance  of  a  judg- 
ment which  has  been  superseded,  (Code,  $3032,)  the  ten  per  cent, 
damages  should  be  computed  <>n  the  amount  of  the  original  judg. 
ment,  and  not  on  that  sum  wiih  the  interest  thereon  up  to  the 
time  of  the  affirmance. 

Appeal  from  the  Circuit  Court  of  Montgomery. 
Tried  before  the  lion.  John  K.  IIi>nry. 

The  appellant  in  this  case  recovered  a  judgment  against 
the  appellees,  in  the  circuit  court  of  Montgomery,  on  the 
9th  June,  1859;  for  $8,000  damages,  besides  costs.  The 
defendants  removed  the  case,  by  appeal,  to  the  supreme 
court,  and  gave  bond  with  surety  to  supersede  the  judg- 
ment. The  judgment  was  aflirmed  by  the  supreme 
court,  at  its  June  term,  1860  ;  and  that  court  rendered  a 
judgment  against  the  defendants,  "for  the  amount  of 
said  judgment, ten  percent,  damages  thereon,  and  costs." 
Wlen  this  judgment  was  certified  to  the  einuit  court, 
the  clerk  of  that  court  is>ne,l  an  execution  again*!  the 
defendants,  for  $x,0()0,  the  amount  of  the  original  judg- 
ment, ''and  §800  damage*  awarded  by  the  supremo 
court,  besides  the  sum  of  #70  25  costs."  At  the  next 
40 


618  SUPREME  COURT 

Lawrence  v.  Jones. 

ensuing  term  of  the  circuit  court,  the  plaintiff  moved  to 
amend  the  execution,  by  striking  out  $800,  as  the  dam- 
ages awarded  by  the  supreme  court,  and  inserting  in  lieu 
thereof  ten  per  cent,  of  the  original  judgment  with 
the  interest  thereon  up  to  the  day  of  the  affirmance. 
The  circuit  court  overruled  the  motion,  and  the  plaintiff' 
excepted  to  its  decision;  and  he  now  assigns  the  same  as 
error. 

Goldtwhaite,  Rice  &  Semple,  for  appellant. 
Watts,  Judge  &  Jackson,  contra. 

STONE,  J.— [February  27, 1861.]— Section  3032  of  the 
Code  declares,  that  when  a  money  judgment,  which  has 
been  superseded  by  appeal  to  this  court,  and  bond  with 
surety  given,  is  affirmed  in  this  court,  the  judgment  here 
iendered  shall  be  "for  the  amount  of  the  affirmed  judg- 
ment, ten  per  cent,  damages  thereon,  and  the  costs  of 
the  supreme  court."  In  this  case,  we  are  required  to  de- 
cide, whether  the  ten  per  cent,  damages  is  limited  to  the 
«um  shown  in  the  face  of  the  judgment  appealed  from,  or 
includes  that  sum  with  interest  thereon  up  to  the  time  of 
the  affirmance. 

If  this  were  a  new  question,  uncontrolled  by  the  pre- 
vious practice  of  the  courts,  it  might  admit  of  contro- 
versy, what  is  the  true  amount  of  the  affirmed  judg- 
ment, on  which  the  ten  per  cent,  damages  should  be  com- 
puted. We  do  not,  however,  feel  at  liberty  to  enter 
upon  this  inquiry  at  the  present  advanced  epoch  in  our 
judicial  history.  A  statute,  similar  to  the  one  under  dis- 
cussion, was  in  force  in  this  State  for  forty  years.-— See 
Clay's  Digest,  309,  §  20.  We  are  convinced,  that  the 
uniform  practice  of  the  courts  has  been,  to  compute  the 
damages  only  on  the  principal  sum  of  the  judgment. 
"This  having  been  the  construction  of  the  act  for  so  long 
a  time,  aud  the  practice  having  been  so  universal,  we  do 
not  feel  at  liberty  to  disturb  it." — Ijaras  v.  Rice,  17  Ala. 

Affirmed. 


OF  ALABAMA.  619 


Harrison  v.  McCrarv. 


HARRISON  vs.  McCRARY. 

[bill  is  equity  for  specific  performance  of  award,  settlement  of 
partnership   accounts,    injunction,    ac.] 

1.  Injunction  of  action  at  laic. — A  court  of  equity  will  not  enjoin  an 
action  at  law  for  a  trespass,  on  the  ground  that  the  plaintiff  there- 
in is,  and  was  at  t lie  time  of  the  alleged  trespass,  indebted  to  the 
defendant  on  account  of  other  matters,  and  is  insolvent. 

2.  Dissolution  of  injunction,  without  dismissal  of  bill. — An  injunction 
may  properly  be  dissolved  for  want  of  equity,  where  the  allega- 
tions of  the  bill  are  nut  sufficient  to  authorize  the  interference  of 
the  court  by  injunction,  although  the  bill  may  be  retained  for 
other  relief. 

Appeal  from  the  Chancery  Court  of  Dallas. 
Heard  before  the  Hon.  James  B.  Clark. 

The  complainant  in  this  case,  L.  C  Harrison,  and  P.  R. 
McCrary,  the  defendant,  formed  a  mercantile  partnership 
in,  October,  1851 ;  the  business  to  be  conducted  in  the 
town  of  Summcrfield,  in  Dallas  county,  and  to  coutiuue 
for  the  period  of  five  years,  unless  sooner  dissolved  by 
agreement.  On  the  22d  December,  1853,  Harrison  bought 
out  McCrary's  interest  in  the  firm,  andemployed  him,  at 
a  fixed  salary,  to  collect  the  outstanding  debts;  and  the 
profits  and  losses  of  the  business  up  to  that  time,  as  shown 
by  the  books,  were  adjusted  between  them  by  written 
agreement.  It  was  soon  afterwards  discovered  that  the 
dataon  which  this  agreement  was  based  ware  incorrect,  and 
the  parties  thereupon  entered  into  another  written  agree- 
ment, which  provided,  in  substance,  that  the  settlement  be- 
tween them  should  be  made  according  to  the  principles  of 
the  original  articles  of  partnership,  instead  of  the  secoud 
agreement  above  mentioned.  Not  being  able  to  settle 
the  partnership  accounts  between  themselves,  the  parties 
entered  into  a  written  agreement,  under  seal,  dated  the 
23d  September,  1857,  to  submit  the  matters  in  dispute  to 


620  SUPREME  COURT 


Harrison  v.  McCrary. 


arbitration  ;  the  award  to  be  entered  up  as  the  judgment 
of  the  circuit  court,  under  the  provisions  of  the  Code. 
On  the  4th  May,  1858,  an  award  was  made  by  two  of  the 
arbitrators,  deciding  that  McCrary  was  indebted  to  Har- 
rison in  the  sum  of  $5,707  57.  This  award  was  filed  in 
the  office  of  the  circuit  clerk,  and  an  execution  was  there- 
on issued  against  McCrary,  which  was  levied  on  four 
slaves;  and  these  slaves  were  afterwards  sold  under  the 
execution,  and  were  purchased  at  the  sale  by  Harrison. 
At  the  term  of  the  circuit  court  to  which  the  execution 
was  returnable,  McCrary  made  a  motion  to  quash  it,  and 
to  set  aside  the  award  ;  and  his  motion  having  been  over- 
rule i,  he  excepted  to  the  ruling  and  decision  of  the. cir- 
cuit court,  and  sued  out  an  appeal  to  the  supreme  court, 
where,  at  the  June  term,  1860,  the  judgment  of  the  cir- 
cuit court  was  reversed,  and  the  cause  remanded, — the 
supreme  court  holding,  that  "the  award  was,  at  least 
prima  facie,  void." — Seethe  case  reported  in  36  Ala.  577. 
Soon  after  the  levy  of  the  execution  on  the  shaves,  (at 
what  precise  time  does  not  appear.)  McCrary  brought  an 
actiou  of  trespass  against  Harrison,  to  recover  damages 
for  the  taking  of  the  slaves;  and  that  action  was  pending 
on  the  7th  July,  1860,  when  Harrison  filed  his  bill  in 
equity  against  McCrary, — -alleging,  in  addition  to  the 
facts  above  stated,  that  McCrary  was  largely  indebted  to 
him  on  account  of  the  partnership  transactions  between 
them,  and  was  insolvent.  The  prayer  of  the  bill  was, 
that  the  action  at  law  might  be  perpetually  enjoined,  and 
the  award  specifically  performed;  or,  in  the  event  the 
court  should  decline  to  decree  a  performance  of  the 
award,  that,  an  accountjmight  be  taken  of  all  thepartnership 
transactions,  and  that  the  value  of  the  slaves,  with  their 
hire,  might  be  applied  to  the  satisfaction,  pro  ianio,  of  the 
amount  which  might  be  found  due  to  the  complainant ;  and 
the  general  prayer,  for  other  and  further  relief,  was  added. 
On  the  tiling  of  this  bill,  an  injunction  was  granted  by  a 
circuit  judge.  After  putting  in  an  answer,  in  which  was 
incorporated  a  demurrer,  the  defendant  moved  the  chan- 
cellor to  dismiss  the  bill  for  want  of  equity,  and  to  dis- 


OF  ALABAMA.  621 


Harrison  v.  McCrary. 


solve  the  injunction.  On  the  hearing  of  this  motion,  the 
chancellor  dissolved  the  injunction,  but  refused  to  dismiss 
the  bill  for  want  of  equity  ;  and  the  dissolution  of  the 
injunction  is  now  assigned  as  error  by   the  complainant. 

Byhd  &  Mobgan,  for  appellant,  cited  Story's  Equity, 
§§  8U3-97,  001,  002,  005,  907,  957-58  ;  Ilarrell  v.  Ells- 
worth, 17  Ala.  576;  Burden  v.  Stein,  27  Ala.  104. 

Pettus,  Pegues  &  Dawson,  contra,  cited  Hamilton  v. 
Adams,  15  Ala.  ~AHj\  Wiggins  v.  Armstrong,  2  Johns. 
Ch.  144;  Norris  v.  tforris,  27  Ala.  519. 

R.  W.  WALKER,  J.— [June  28,  1861.]— There  was  no 
error  in  the  decree  dissolving  the  injunction.  The  com- 
plainant admits  that  he  committed  a  trespass  in  taking 
and  carrying  away  the  defendant's  slaves;  and  he  seeks 
to  enjoin  the  action  for  that  trespass,  on  the  ground  that 
the  defendant  is  indebted  to  him  on  account  of  part- 
nership transactions,  and  is  insolvent.  The  well-settled 
rule,  that  a  creditor  at  large,  or  before  judgment,  is  not 
entitled  to  an  injunction,  to  prevent  the  debtor  I  o 
fraudulently  disposing  of  his  property,  (Wiggins  v.  Ann- 
strong,  2  Johns.  Ch.  144;  Mercer  v.  Downs,  Hopkins  Oh. 
365,)  would  seem  to  be  decisive  against  the  right  to  an 
injunction  in  this  case.  For,  if  the  creditor  can  take 
his  debtor's  property  by  force,  to  secure  his  debt,  and 
hold  on  to  it  by  enjoining  the  action  of  trespass,  he  is 
permitted  to  accomplish  by  force,  sanctioned  in  equity, 
that  which  the  court  would  not  allow  him  to  do  without 
force.  To  sutler  that  to  be  done,  would  be  a  plain  viola- 
tion of  the  familiar  and  wholesome  principle,  that,  a  right 
cannot  grow    out  of  a    wrong —Sue,    further.    Hamilton 

v.  Adams,   15  Ala.  o'.ui.     En  addition  to  this,  a  court  of 
law  is  the  proper  tribunal  to   ascertain  the  damages,  to 
which  a  party  is  entitled  for  a  trespass  upon  his] 
*  Smart  money,1  or  rindiotive  damages)  can  be  r  I 

at  law;   but  a  court  of  equity  cannot  consider  that 
tion  at  all,  and  therefore  ean not  ascertain  the  dan 


n 

622  SUPREME  COURT 

Ward  v.  Cameron's  Adm'rs. 

The  effect  of  sustaining:  the  injunction,  in  such  a  case, 
must  be  to  deny  the  .right  of  the  injured  party  to  smart 
money. 

It  is  hardly  necessary  to  add.  that  where  a  bill  does 
not  warrant  an  injunction,  the  injunction  may  properly 
be  dissolved,  although  the  bill  may  be  retained  for  other 
relief. — Xorris  v.  Norris,  27  Ala.  529. 

Decree  affirmed. 


WARD  vs.  CAMERON'S  ADM'RS. 

[application  for  revocation  of  letters  of  administration.] 

1.  Presumption  in  favor  of  ruling  of  primary  court. — In  a  probate  case, 
where  the  correctness  of  the  ruling  of  the  primary  court  depends 
on  the  proof,  and  the  record  does  not  purport  to  set  out  all  the 
evidence  on  which  the  probate  judge  acted,    the  appellate  court 

"will  presume  that  his  decision  was  justified  by  the  evidence. 

2.  Revocation  of  letters  of  administration. — If  letters  of  administration 
are  granted  by  the  probate  court,  within  forty  days  after  the  death 
of  the  intestate  is  known,  in  contravention  of  the  order  of  prefer- 
ence prescribed  by  the  statute,  (Code,  \\  16G8-6P,)  the  largest  credi- 
tor of  the  estate  may  proceed  to  obtain  a  revocation  of  such  letters  ; 
but,  to  entitle  him  to  make  an  application  for  that  purpose,  he 
must  show  that  he  is  the  largest  creditor  of  the  estate  ;  and  he  can- 
not complain,  on  error,  of  the  refusal  of  his  application,  when  the 
record  does  not  show  that  he  proved  that  fact. 

Appeal  from  the  Probate  Court  of  Henry. 

In  the  matter  of  the  estate  of  Angus  Cameron,  deceased, 
on  the  application  of  John  Ward  and  Christopher  Ward 
for  the  revocation  of  letters  of  administration  previously 
granted  to  Sarah  Cameron'  and  Richard  T.  Hudspeth, 
and  the  grant  of  letters  to  themselves.  The  refusal  of 
the  application  is  assigned  as  error. 


I 

OF  .ALABAMA. 623 

Ward  v.  Cameron's  Adm'rs. 


Martin,  Baldwin  &  Sayre,  for  appellants. 
Pugh  &  Bullock,  contra. 

A.  J.  WALKER,  C.  J.— [June  8th,  1861.]— An  appli- 
cation was  made  by  the  appellants,  for  the  repeal  or  the 
letters  of  administration  of  the  appellees.  The  parties 
making  the  motion  filed  a  petition,  which  is  set  out  in  the 
record.  In  the  petition  they  claim  to  be  the  largest  credi- 
tors of  the  estate.  The  entry  of  the  judge,  overruling 
the  petition,  does  not  set  out  all  the  evidence  which  was 
adduced  on  the  trial,  and  there  is  no  bill  of  exceptions. 
We  have,  therefore,  presented  t\\a  case,  which  has  been 
unfortunately  of  very  frequent  occurrence,  where  the 
correctness  of  the  ruling  of  the  court  below  depends  upou 
the  proof,  and  we  do  not  know  what  the  proof  was.  In 
such  case,  we  must  presume  in  favor  of  the  correctness  of 
the  judgment,  and  award  an  affirmance. — Morgan  v. 
Morgan,  35  Ala.  303;  Taylor  v.  McElrath,  ib.  330;  South- 
ern Ins.  Co.  v.  Holcombe,  ib.  327  ;  Rupert  v.  Elston,  ib.  79. 

[2.]  It  is  uot  shown  that  the  appellants  proved  that 
they  were  the  largest  creditors  of  the  estate,  or,  indeed, 
that  they  were  creditors  at  all.  We  have  decided,  that 
where  an  administrator  was  appointed  within  forty  days, 
iu  contravention  of  the  order  of  preference  prescribed  by 
the  statute,  the  largest  creditor  of  the  estate  might  pro- 
ceed to  obtain  a  revocation  of  the  administration. — Cur- 
tis v.  Williams,  33  Ala.  570;  Curtis  v.  Burt,  34  ib.  729. 
But,  unless  the  petitioner  was  a  creditor  of  the  estate,  he  . 
would  have  no  right  to  move  for  a  revocation  of  an  irreg- 
ular appointment,  and  no  ground  for  complaint  that  the 
court  overruled  his  motion.  As  it  does  not  appear  that 
the  petitioners  were  creditors,  we  can  not  affirm  that 
there  was  no  sufficient  reason  for  the  action  of  the  court. 

Aftinnt'd. 


# 
624  SUPREME  COURT 


Coker  v.  Pitts. 


COKER  vs.  PITTS. 

[sale  of  slaves  jjy  prouate  court  FOR  PARTITION.] 

1.   When  tale  for  partition  may  be  decreed. — Under  tlie  act  of  February 
5,   1  ion  Acts  1855-46,  p.   20,)   an  order  for  the  sale  of 

slaves,  for  partition  among  the  several  joint  owners  or  tenants  in 
common,  should  not  be  granted  by  the  probate  court,  on  the  ap. 

plication  of  the  guardian  of  infants,  without  proof  that  the  sale 
would  he  to  the  interest  of  the  infants  ;  but,  when  the  application: 
is  made  by  adult  part-owners,  such  proof  is  not  necessary,  although 
some  of  the  parties  interested  are  infants. 

Appeal  from  the  Probate  Court  of  Tallopoosa. 

"Wm.  II.  Barnes,  for  appellant. 
McCraw  &  Oliver,  contra. 

STONE,  J.— [June  28,  1861.]— The  present  applica- 
tion, for  the  sale  of  slaves  for  division,  was  made  under  the 
act  approved  February  5th,  1856,  which  act  was  amenda- 
tory of  the  act  of  February  15th,  1854,  and  of  section 
2677  of  the  Code.— See  Pamphlet  Acts  of  1855-6,  p.  20; 
Acts  of  1853-4,  p.  7.  The  petitioners  in  this  case  were 
not  guardians  of  infants,  or  'persons  of  unsound  mind;  but 
petitioned  in  their  own  right,  they  being  adults.  The 
proof  taken  in  the  cause  conclusively  shows,  that  an  equi- 
table "partition  or  division"  of  the  slaves  can  not  be  made 
without  a  sale;  but  it  is  not  shown,  that  it  would  be  to 
the  interest  of  the  infants,  who  are  part-owners  of  this 
property,  to  sell  the  same.  It  is  here  contended,  that  the 
order  of  sale  should  not  have  been  granted  in  the  absence 
of  such  proof.  In  support  of  this  position,  the  appellants 
rely  On  the  5th  section  of  the  act  of  February  5th,  1856, 
which  declares,  that,  "before  granting  any  application  un- 
der this  act,  the  said  judge  of  probate  must  be  satisfied  by 
evidence,  taken  as  in  chancery  cases,  that  an  equitable 
partition  or  division  can  not  be  made;  and,  when  the  ap- 


OF  ALABAMA.  625 


Alabama  &  Tennessee  Rivers  Railroad  Company  v.  Oaks  &  Mills. 


plication  is  by  the  guardian  of  any  one  or  more  of  the 
infants  or  persous  of  unsound  mind,  the  judge  of  probata 
must  not  only  be  satisfied  that  such  property  can  not  be 
equitably  divided,  but  that  it  would  be  to  the  interest  of 
such  infants  or  persons  of  unsound  mind  to  sell  the  same 
for  the  purpose  of  partition  and  division." 

This  argument  can  not  be  maintained.  It  runs  coun- 
ter to  the  express  language  of  the  statute,  and  to  the  fa- 
miliar maxim  of  the  law,  inclusio  unius  est  exclusio  alterius. 
Moreover,  there  is  strong  reason  for  requiring  proof  that 
the  interest  of  the  infants  would  he  promoted  by  a  sale, 
when  the  guardian  is  the  actor  in  the  proceedings.  In  such 
case,  the  guardian  alone  manifests  a  wish  to  sell ;  and 
sound  policy  would  dictate  that  his  wish  should  not  be 
gratitied^inless  it  would  be  to  the  interest  of  the  infants 
to  sell.  The  case  is  quite  changed,  when  adult  part- 
owners  ask  a  sale  for  division.  Their  interests  are  coequal 
with  those  of  the  infants.  Their  right  to  have  the  pos- 
session of  their  property,  and  to  have  their  wishes  in  the 
premises  gratified,  is  to  he  respected  equally  with  the  in- 
terests of  the  infants.  It  would  be  monstrous  to  hold, 
that  adult  part-owners  should  be  kept  out  of  the  enjoy- 
ment of  their  property,  merely  because  other  part-owners 
were  infants,  and  the  interests  of  such  infants  did  not  re- 
quire that  the  property  should  be  sold. 

Judgment  of  the  probate  court  affirmed.  Let  the  costs 
of  this  appeal  be  paid  by  the  appellant,  Thomas  J.  Smith. 


ALA.  k  TEXX.  RIVER8  RAILROAD  COMPANY  vs. 
OAKS  kMIL] 

[ACTION  AGAINST  KAII.l:"  ID  I  "UPANY   AS  COMMON  CAli! 

I.  25  nurt. 

In  appeal  casea  from  ajtutice'i  court,  where  the  amount  in  eontro- 


626 SUPREME  COURT 

Alabama  k  Tennessee  Rivers  Railroad  Company  v.  Oaks  &  Mills. 

versy  exceeds  twenty  dollars,  the  statute  authorizing  either  party 
to  he  a  witness  in  his  own  behalf,  (Code,  \  2770,)  has  no  application 
to  suits  by  or  against  corporations  aggregate. 

Appeal  from  the  Circuit  Court  of  Shelby. 
Tried  before  the  Hon.  James  B.  Martin. 

Byrd  &  Morgan,  for  appellant. 

R.  W.  WALKER,  J.— [July  2,  1861.]— This  was  an 
appeal  from  a  justice's  court.  The  plaintiffs  (who  were 
partners)  claimed  over  twenty,  and  less  than  fifty  dollars; 
and  one  of  them  offered  himself  as  a  witness.  He  was 
objected  to  as  incompetent  to  testify,  on  the  ground  that 
the  defendant  was  a  corporation  ;  but  the  court  overruled 
the  objection,  and  permitted  the  witness  to  testify. 

The  Code  provides,  that  "when  the  matter  in  contro- 
versy, or  damages  claimed,  exceed  twenty  dollars,  either 
party  may  be  a  witness  in  his  own  behalf,  unless  the  party 
against  whom  the  testimony  is  offered  swears  that  the 
testimony  proposed  to  be  given  is  untrue." — Code,  §  2779. 
The  language  here  employed  plainly  implies,  that  this 
provision  was  designed  to  apply  only  to  those  cases,  in 
which  the  party  against  whom  the  testimony  is  offered 
has  the  legal  capacity  to  take  an  oath.  A  corporation 
aggregate  can  not  take  upon  itself  an  oath,  and  upon  that 
oath  swear  that  the  testimony  proposed  to  be  given  is 
untrue.  The  section  of  the  Code  (§  2313)  construed  in 
Yonge  v.  Mobile  &  Ohio  R.  R.  Co.,  (31  Ala.  422,)  bears 
a  strong  resemblance  to  the  one  we  are  considering;  and 
the  decision  of  the  court  in  that  case  supports  the  opinion 
just  expressed,  that  the  clause  of  section  2779,  above 
quoted,  has  no  application  to  suits  by  or  against  corpora- 
tions. 

Judgment  reversed,  and  cause  remanded. 

A.  J.  Walker,  C.  J.,  not  sitting. 


OF  ALABAMA.  627 


Coate  v.  Coate's  Adm'r. 


COATE  vs.  COATE'S  ADM'R. 

[tuover  for  COttTBRBloN  of  slaves.] 

1.  Competency  oj  transferror  as  witness  for  transferrre. — A  distributee 
of  an  estate,  who  is  shown  to  have  released  to  the  other  distribu- 
tees his  interest  in  the  subject-matter  of  a  suit  brought  by  the  ad- 
ministrator, in  his  representative  character,  is  not  incompetent  as 
a  witness  For  the  plaintiff  under  section  2290  of  the  Code. 

ijideneij  of  distributee  as  witness  for  administrator. — But  such  dis- 
tributee, notwithstanding  such  release,  is  not  a  competent  witness 
for  the  administrator,  on  the  ground  of  interest,  although  he  might 
be  rendered  competent  by  a  release  of  his  entire  interest  in  the 
estate. 

3.  Competency  of  witness  as  affected  By  interest — An  obligor  in  a 
bond  given  under  section  1691  of  the  Code,  when  administration 
is  committed  to  the  general  administrator,  the  sheriff,  or  the  cor- 
oner, conditioned  for  the  payment  of  the  feesand  allowances  made 
by  the  court  on  such  administration,  "  if  the  property  of  the  es- 
tate is  insufficient  therefor,"  is  nut,  under  section  2302  of  the  Code, 
incompetent  as  a  witness  for  such  administrator,  in  an  action 
brought  by  him  in  his  representative  charaoter. 

Appeal  from  the  Circuit  Court  of  Clarke. 
Tried  before  the  Hon.  John  K.  IIenky. 

This  action  was  brought  b}T  E.  P.  Chapman,  as  the 
administrator  of  William  F.  Coate,  deceased,  against 
Burr  J.  (  i  recover  d:i  or  the  conversion  of 

several  slaves;.     The   defendant  pleaded    not  guilty,  and 
I       itatute  of  limitation!  yean,  with  leave  to  give 

toy  special  mutter   in  evidence.     "On  the  trial,"  as  the 
bill  of  ezceptioi  .    "the    plaintiff  introduced  one 

Andnw  J.  Coate  as  I  witness  ;  to  whose  competency  the 
defendant  objected,  <m  ths  ground  that  he  was  in  ten 
in  the  event  of  this  suit,  and   that  the  record  in    this  suit 
would  be  evidence  for  him  in    another  suit;   and   proved 
to  the  court, that plaintin  jnochil- 

dren,  and  that  said    witi  bit   brother,    and   one  of 


•628  SUPREME  COURT 

Coate  v.  Coate's  Adin'r. 

the  distributees  of  his  estate.  The  plaintiff  then  offered 
an  instrument  of  writing,  which  was  proved  to  have  been 
executed  and  delivered  by  said  witness,  dated  the  24th 
September,  1860;  by  which  he  released  and  conveyed  to 
Mary  E.  Toland  and  John  S.  Coate  all  his  right  and  title, 
both  at  law  and  equity,  in  and  to  the  slaves  which  are 
the  subject  of  this  suit,  and  their  hire  ;  and  proved  to  the 
•court,  that  said  Mary  E.  Toland  and  John  S.  Coate  were, 
besides  said  witness,  the  only  distributees  of  said  estate. 
The  defendant  still  objected  to  the  competency  of  said 
witness,  on  the  ground  above  stated,  and  because  said  in- 
strument was  but  a  transfer  of  said  witness'  -interest  in  the 
subject-matter  of  the  suit.  The  court  overruled  both  of 
said  objections,  and  permitted  said  witness  to  testify  for 
the  plaintiff;  and  the  defendant  excepted.  The  defend- 
ant further  objected  to  the  competency  of  said  witness, 
on  the  ground  that  he  was  one  of  the  makers  of  a  bond, 
indemnifying  said  plaintiff,  as  the  administrator  of  said 
estate,  against  any  fees  and  allowances  for  which  he  might 
be  liable  beyond  the  assets  of  said  estate;  and  read  said 
bond  in  evidence,  after  proving  its  execution.  The  court 
overruled  this  objection,  and  the  defendant  excepted." 
The  condition  of  said  bond,  alter  reciting  that  letters  of 
administration  on  the  estate  of  said  intestate  had  been 
granted,  on  the  application  of  said  John  S.  Coate,  to  E. 
P.  Chapman,  the  sheriff  of  the  county,  was,  that  "if  said 
John  S.  Coate  shall  well  and  truly  pay,  or  cause  to  be 
paid,  such  fees  and  allowances  as  may  be  made  by  said 
court  on  such  administration,  if  the  property  of  the  es- 
tate if  insufficient  therefor,  then  this  obligation  to  be 
void,"  &c  The  overruling  of  the  several  objections  to 
the  competency  of  the  witness,  and  permitting  him  to 
testify,  are  the  only  matters  assigned  as  error. 

Dickinson  &  Kili-atrick,  for  appellant. 
William  Boyles,  contra. 

A.  J.  WALKER,  C.  J.— [June  6, 1861.]— The  objection 
that  Andrew  J.  Coate  was  incompetent,  because  he  wag 


OF  ALABAMA.  629- 


Coate  v.  Cftnte's  Adm'r. 


a  transferror,  offered  as  a  witness  to  establish  a  right  trans- 
ferred by  him,  is  not  to  be  decided  upon  the  decisions  of 
this  court  made  before  the  adoption  of  the  ('ode.  The 
subject  is  covered  by  the  Code,  and  the  question  must 
be  determined  by  reference  to  section  2290  of  the  Code, 
and  the  construction  of  it  which  has  been  adopted.  The 
precise  objection  which  we  are  considering,  was  made 
and  overruled,  in  the  ease  of  Robinson  v.  Tipton,  (31  Ala. 
595,)  and  by  that  decision  we  are  willing  to  abide. 

[2.]  This  court  is  committed  no  the  proposition,  that 
the  distributee  is  incompetent  as  a  witness  for  the  admin- 
istrator, on  the  ground  of  interest. — Walker  v.  Walker, 
34  Ala.  469  ;  McLemorc  v.  Nuckolls,  at  the  present  term. 
The  witness  in  this  case  was  incompetent,  unless  his 
incompetency  was  removed.  To  restore  the  competency 
of  the  witness,  the  plaintiff  proved,  that  the  witness  had 
made  a  transfer  to  two  of  his  co-distributees,  of  his  interest 
in  the  slaves  in  controversy,  and  the  hire  of  them.  It  is 
well  established,  that  a  release  by  the  distributee,  of  his 
entire  interest  :n  the  estate,  would  have  removed  the  ob- 
jection.— Robinson  v.  Tipton,  supra;  Gray  v.  Gray, 
22  Ala.  233  ;  Ilcrndon  v.  Givens,  19  Ala.  313;  Johnson  v. 
Culbreath,  ib.  348;  Clealand  v.  Iluey,  18  ib.  343.  But  we 
think  it  is  equally  clear,  both  upon  principle  and  author- 
ity, that  a  mere  transfer  of  the  distributee's  interest  in 
the  subject-matter  of  the  particular  suit  will  not  have  that 
effect.  Notwithstanding  such  a  transfer,  the  witness  is 
interested  in  tin4  remainder  of  the  estate,  in  swelling  the 
fund  tor  the  payment  of  debts,  and  in  avoiding  1  he  impo- 
sition of  costs  upon  the  administrator,  whereby  the  assets 
for  distribution  will  be  diminished.  The  precise  ques- 
tion was  decided  by  this  court  in  A.bercrorobie  v.  Hall, 
(6  Ala.  657,)  adversely  to  the  competency  of  the  witness. 
See,  also,  Maury  v.  Mason,  8  Porter,  211. 

[8.]  As  the  objection  to  the  competency  of  the  witness 

la*1  noticed  may  be  removed  upon  a  future  trial,  it  is  ne- 

,\-y  for*  us  to  notice  another  objection.     The  witness 

is  one  of  the  obligOW  in  a  bond  given  under  section  1691 

of  the  Code,  conditioned  to  pay  and  allowances 


630  SUPREME  COURT 


Memphis  &  Charleston  Railroad  Company  v.  Bibb. 

made  by  the  probate  court  on  the  administration,  "  if  the 
property  of  the  estate  is  insufficient  therefor."  The  lia- 
bility upon  this  bond  is  contingent  upon  the  facts,  that 
there  are  fees,  and  that  allowances  are  made  by  the  court, 
and  that  u  the  property  of  the  estate  is  insufficient  there- 
for." Itisnotabond  for  the  indemnity  of  the  administrator 
against  the  costs  of  the  suit;  and  the  question  here  is  not 
at  all  analogous  to  that  which  was  decided  in  Harris  v. 
Plant,  (31  Ala.  639,)  as  to  the  competency  of  one  bound 
to  indemnify  the  party  who  offers  him.  The  proceedings 
in  this  case  are,  as  to  the  obligors  in  the  bond,  res  later  alios 
acta.  We  can  not  perceive  how  the  judgment  could  be 
evidence  for  them  in  a  suit  upon  the"  bond,  except  in  the 
same  sense  in  which  it  would  be  evidence  as  to  all  the 
world,  to  prove  the  fact  that  such  a  judgment  was  ren- 
dered. We  decide,  therefore,  that  the  witness,  under 
section  2302  of  the  Code,  was  not  incompeteut,  in  conse- 
quence of  his  being  an  ohligor  on  the  bond  above  named. 
Reversed  and  remanded. 


MEMPHIS  &  CHARLESTON  RAILROAD  COMPA- 
NY vs.  BIBB. 

[action   against   railroad  company,  to   recover   value   of  horses 
killed  ky  locomotive.] 

1.  Objection  to  interrogatory  to  tvitness;  when  made. — When  a  deposi- 
tion is  taken  without  iiling  interrogatories,  an  objection  to  a  ques- 
tion, on  the  ground  that  it  is  leading,  must  be  made  at  the  exam- 
ination of  the  witness,  and  comes  too  late  when  made  for  the  first 
time  at  the  trial. 

2.  Statutory  liability  of  railroad  company ;  general  charge  on  evidence. — 
In  an  action  against  a  railroad  company,  to  recover  the  value  of 
horses  run  over  and  killed  by  the  defendant's  engines  and  cars,  if 
the  evidence  simply  shows  that  the  horses  were  run  over  and  killed 
by  a  train  of  cars,  and  that  tho  engineer  in  charge  of  the  train 


OF  ALABAMA.  631 


Memphis  &  Charleston   Railroad  Company  v.  Bibb. 


foiled,  at  the  time  the  accident  occurred,  to  comply  with  the  re- 
quisitions of  the  statute  as  to  blowing  the  whistle,  ringing  the  bell, 
reversing  the  engine,  etc.,  (Session  Acts  1857-58,  p.  15,)  the  court 
is  not  authorized  to  charge  the  jury,  that,  if  they  believe  the  evi- 
dence, they  must  find  for  the  plaintiff:  such  a  charge  is  an  inva- 
sion of  the  province  of  the  jury,  who  alono  could  infer  from  the 
evidence  that  the  damage  was  caused  by  the  engineer's  neglect  of 
duty. 

Appeal  from  the  Circuit  Court  of  Jackson. 
Tried  before  the  Hon.  8.  1).  Hale. 

Tins  action  was  brought  by  A.  S.  Bibb,  against  the  ap- 
pellant, a  corporation  chartered  by  an  act  of  the  legis- 
lature of  this  State,  to  recover  the  value  of  two  horses, 
which  were  run  over  and  killed  by  a  train  of  cars  be- 
longing to  the  defendant ;  and  was  commenced  on  the 
6th  November,  1850.  No  pleas  appear  in  the  record. 
''When  the  cause  was  called  for  trial,"  as  the  bill  of  ex- 
ceptions states,  "the  defendant  moved  the  court  to  sup- 
press the  second  interrogatory,  with  the  answer  thereto, 
contained  in  the  deposition  of  the  witness  Rigney,  be- 
cause said  interrogatory  is  leading."  The  deposition  of 
tins  wit  lies-  was  taken  without  tiling  interrogatories  ;  but 
the  commissioner  by  whom  it  was  taken  wrote  down  the 
epiestions  which  were  asked,  with  the  answers  thereto. 
The  court  overruled  the  motion,  and  the  defendant  ex- 
cepted. 

The  witness  Rigney  testified,  that  he  was  a  passenger 
on  the  train  of  cars  by  which  the  plaintiff's  horses  were 
killed;  that  his  attention  was  attracted  by  the  continuous 
blowing  of  the  whistle,  and,  on  looking  out  of  the  win- 
dow, he  saw  the  horses  on  the  railroad  track,  running  at 
full  Speed,  and  apparently  much  frightened ;  that  the  cars 
were  'moving  with  their  usual  velocity,  were  not  more 
than  fifty  yards  behind  the  horses,  and  were  gaining  on 
them  ;  that  the  horsi  ft,  when  he  first  saw  them,  w  ere  about 
one  hundred  and  fifty  yards  distant  from  the  railroad 
bridge  across  Taint  Rock  river,  and  were  running  towards 
the  bridge;  that  they  were  o  D  by  the  cars  just  be- 


632  SUPREME  COURT 


Memphis  &  Charleston  Railroad  Company  v.  Bibb. 


fore  reaching  the  bridge,  were  run  over  and  killed;  and 
that  the  speed  of  the  cars  was  not  checked  until  they  were 
very  near  the  bridge,  and  not  in  time  to  save  the  horses. 
It  was  proved  by  the  plaintiff,  that  the  railroad  track  was 
crossed  by  the  public  road  leading  from  Iluntsville  to 
Bellefonte,  at  a  point  which  was  variously  estimated  by  the 
witnessesat  from  fourtosix  hundred  yards  from  thebridge; 
that  the  track,  at  the  crossing,  was  on  an  embankment 
about  eight  feet  high,  which  gradually  increased  to  about 
twenty-five  feet  at  the  bridge,  and  was  an  up-grade-;  and 
that  the  engineer,  who  had  charge,  of  the  train  at  the  time 
of  the  accident,  did  not  blow  the  whistle,  nor  ring  the 
bell,  before  reaching  the  crossing.  The  value  of  the 
horses  was  also  proved.  The  above  being  the  substance  of 
all  the  evidence  introduced  by  the  plaintiff,  and  the  de- 
fendant introducing  no  evidence  at  all,  the  court  charged 
the  jury,  "that,  if  they  believed  the  evidence,  they  must 
find  for  the  plaintiff";  to  which  charge  the  defendant 
excepted. 

The  charge  to  the  jury,  and  the  ruling  of  the  court  on 
the  evidence,  as  above  stated,  are  now  assigned  as  error. 

Walker  &  Brickell,  for  appellant. 
Robinson  &  Jones,  contra. 

STONE,  J.— [July  18,  1861.]— The  objection  to  the 
form  of  the  interrogatory,  if  there  be  any  thing  in  it, 
came  too  late.  It  should  have  been  made  at  the  examina- 
tion of  the  witness;  tor,  to  hold  otherwise,  would  license 
parties  to  experiment,  and  greatly  hinder  the  ascertain- 
ment of  truth. — Kyle  v.  Bostick,  10  Ala.  589;  Sayre  v. 
Durwood,  35  Ala.  251;  Towns  v.  Alford,  2  Ala.  378; 
3  Bin.  130;  10  S.  &  R.  (J:). 

[2.]  The  act  "to  define  and  regulate  the  liability  of 
railroad  companies,"  approved  February  9th,  1852,  which 
was  construed  in  Nashville  &  Chattanooga  Railroad  Co. 
v.  Peacock,  (25  Ala.  230,)  was  materially  modified,  and 
some  of  its  provisions  repealed,  by  the  later  statute,  of 
the  same  title,  approved  February  6th,  1858. — See  Session 


OF  ALABAMA.  633 


Memphis  &  Charleston   Kailroad  Company  v.  Bibb. 


Acts  of  1851-2,  p.  45;  and  of  1857-8,  p.  15.  The  later 
statute  was  of  force  when  the  plaintiff  in  the  present 
suit  sustained  the  injury  of  which  he  complains. 

The  act  of  185?,  after  declaring  that  it  is  "the  duty  of 
the  engineer,  or  other  person  having  control  of  the  run- 
ning of  a  locomotive  on  any  railroad  in  this  State,  to  hlow 
the  whistle,  or  ring  the  bell,"  and  to  apply  the  brakes, 
and  reverse  the  engine  in  certain  cases,  employs  the  fol- 
lowing language  :  "That  all  railroad  companies,  in  whose 
employment  said  engineers  are  at  the  time  of  any  acci- 
dent occasioned  by  failure  to  comply  with  the  provisions 
of  the  first  section  of  this  act,  shall  be  liable  for  all  dam- 
age done,  to  persons,  stock,  or  other  property, OQ  account 
of  said  failure  to  comply  with  the  requirements  of  this 
act,  or  on  account  of  any  neglegence  whatever  on  the 
partof  the  railroad  company  or  its  ageute,  and  in  no  other 
case." 

The  testimony  in  this  case  tends  to  show,  that  the  en- 
gineer failed  to  comply  with  the  provisions  of  the  first 
section  of  the  act  of  1858;  and  to  this  extent,  there  does 
not  seem  to  have  been  any  conflict  in  the  testimony.  But 
there  was  no  witness  who  testified,  or  probably  could  tes- 
tily, that  the  accident  complained  of  was  occasioned  by 
the  engineer's  omission  of  duty.  Before  it  could  be'af- 
firmed  that  Mr.  Bibb  had  lost  his  horses  on  account  of  the 
engineer's  failure  to  comply  with  the  duties  enjoined  on 
him  by  the  statute,  it  was  necessary  that  some  other  fact 
should  be  inferred  from  those  of  which  proof  was  made. 
It  is  the  province  of  the  jury  to  draw  inferences  of  fact; 
but  the  court  can  draw  no  such  conclusions,  except  the 
case  be  within  the  operation  of  some  legal  presumption. 
See  Br.  Bank  v.  Crocheron,  5  Ala.  '250;  Ward  v.  State, 
at  the  last  term;  Bliss  v.  Anderson,  -)\  Ala.  Kep.  612. 
The  charge  given  on  the  sffect  of  the  evidence,  it  believed, 
invaded  the  province  of  the  jury. 

This  case  is  not  affected  by  the  act  of  the  late  extra 
session  of  the  legislature. — Pamphlet  Acts,  37. 

Reversed  and  remanded. 

R.  W.  Walker,  J.,  not  sitting. 
41 


P34  SUPREME  COURT 


Hunt's  Executor  v.  Hall. 


HUNT'S  EXECUTOR  vs.  HALL. 

[ACTION  ON  PROMISSORY  NOTr,   IiT  ASSIGNEE  AGAINST  MAKER.] 

1.  Conflict  of  laws  as  to  rate  of  interest. — A  promissory  note,  made  in 
this  State,  but  payable  in  New  Orleans,  bears  interest  according  io 
the  laws  of  Louisana,  unless  a  different  rate  is  specified  in  the  note 
itself. 

2.  Alteration  of  written,  by  $uhsrqvrnt  verbal  contract;  variance. — The 
maker  and  holder  of  a  promissory  note  may,  by  subsequent  verbal 
agreement,  founded  on  sufficient  consideration,  change  the  rate  of 
interest  Which  it  hears ;  yet  the  holder  cannot,  in  a  suit  on  the  note 
itself,  recover  on  such  modified  contract. 

Appeal  from  the  Circuit  Court  of  Mobile. 
Tried  before  the  Hon.  C.  W.  Rapier. 

This  action  was  brought  by  the  executrix  of  Thomas  F. 
Hunt,  deceased,  against  John  Hall,  Joseph  Hal!  and  Gerald 
B.  Hall  ;  was  founded  on  the  defendants'  promissory 
note  for  $2,000,  dated  Mobile,  March  11th,  1850,  payable 
to  John  Hunt  or  order,  in  the  city  of  New  Orleans,  with 
interest  from  date,  and  assigned  by  the  personal  repre- 
sentative of  said  John  Hunt  to  the  plaintiff's  testator; 
and  was  commenced  on  the  2;M  March,  1859.  The  de- 
fendants pleaded  the  general  issue,  and  payment.  On  the 
trial,  as  the  judgment  entry  shows,  the  plaintiff  read  in 
evidence  the  note  which  was  the  foundation  of  the  suit, 
with  the  several  credits  endorsed,  and  the  deposition  of 
one  Walker.  The  credits  endorsed  on  tlie  note  were  the 
following  :  "  New  Orleans,  March  0,  1851,  $160,  interest 
on  this  note  to  the  11th  inst.";  "New  ^Orleans,  March 
10,  1852,  $100,  for  one  year's  interest  on  this  note"  ;  "on 
account  of  principal  and  interest  of  this  note,  §1,500, 
Dec.  8,  1858";  "on  account  of  principal  and  interest, 
$1,027  50,  April  15,  1859."  The  last  endorsement  was 
signed  by  the  plaintiff 's  attorney;  the  others,  ns Walker 
testified,  were  in  the  handwriting  of  the  personal  repre- 


OF  ALABAMA.  635 


Hunt's  Executor  t.  Hall. 


sentative  of  John  Hunt.  Walker  testified,  also,  to  facts 
tending  to  show  that,  by  the  terms  of  the  contract  be- 
tween the  payee  and  makers,  the  note  was  to  bear  eight 
percent,  interest;  and  that,  by  subsequent  agreement 
between  himself,  as  the  collecting  attorney  of  the  plain- 
tiff, and  one  of  the  defendants,  the  latter  expressly  prom- 
ised to  pay  eight  per  cent,  interest,  in  consideration  of 
his  forbearance  to  sue  until  a  specified  day,  which  had 
passed  before  the  commencement  of  the  suit.  It  was  ad- 
mitted, that  the  legal  rate  of  interest  in  Louisana  was 
five  per  cent.  This  being  all  the  evidence  introduced  by 
the  plaintiff',  the  defendants  demurred  to  it;  and  the 
court  thereupon  rendered  judgment  for  the  plaintiff,  for 
one  cent  damages,  besides  costs;  holding,  that  the  defend- 
ants were  indebted  to  the  plaintiff  at  the  commencement 
of  the  suit,  but  had  paid  the  sum  due.  The  plaintiff  ap- 
peals from  this  judgment,  and  here  assigns  the  same  as 
error. 

W.  C.  Easton,  for  appellant. — The  judgment  of  the 
court  below  is  founded  on  the  erroneous  assumption,  that 
the  note  carried  only  five  per  cent,  interest,  and  was 
therefore  fully  paid  by  the  credits  endorsed  on  it.  It  has 
been  decided  in  Louisiana,  that  if  the  rate  of  interest 
specified  in  a  contract  be  according  to  the  law  of  the 
place  where  the  contract  was  made,  although  that  rate 
may  be  greater  than  is  allowed  by  the  law  of  the  place 
where  payment  is  to  be  made,  the  courts  of  the  latter 
place  will  enforce  the  payment  of  the  specified  rate,  as  a 
part  of  the  substance  of  the  contract.  —  Dessau  v.  Hum- 
phreys, 20  La.  11.  The  same  doctrine  prevails  in  New 
York  and  Vermont;  is  said  by  Chancellor  Knit  to  have 
much  to  recommend  it,  lor  reasonableness,  convenience, 
and  certainty  ;  is  fully  sustained  by  Judge  Parsons,  and 
is  cited  with  approbation  by  this  court,  in  Ilanrick  v.  An- 
drews, 9  Porter,  30. — See  Chapman  v.  Robinson,  6  Pa 
627;  Peck  v.  Mayo,  14  Vum  %  Ksnt'iCom. 

note;  Tarsons  on  Contra  The  rat.  of  inter- 

est not  being  expressed  on  the  face  of  the  note,  Walker's 


636  SUPREME  COURT     

Hunt's  Executor  v.  Hall. 

testimony  was  admissible   to   prove  it. — West  v.   Kelly, 

19  Ala.  353;  Han  rick  v.  Andrews,  0  Porter,  35;  31  Ala. 
721  ;  1  Green!.  Ev.  §§  286,  288. 

Chamberlain  &  Hall,  contra. — The  note  being  payable 
in  New  Orleans,  the  rate  of  interest  is  to  be  determined 
by  the  law  of  Louisiana. — Dickinson  v.  Branch  Bank, 
12%Ala.  54  ;  Story  on  Conflict  of  Laws,  (4th  ed.)  §  291. 

R.  W.  WALKER,  J.— [July  9,  1861.]— The  note  was 
made  payable  in  Louisiana,  and,  being  silent  in  respect  to 
the  rate  of  interest,  must  bear  interest  according  to  the 
law  of  that  State. — Dickinson  v.  Branch  Bank,  12  Ala. 
54;  Story  on  Conflict  of  Laws,  §  291;  Seofield  v.   Day, 

20  Johns.  102 ;  Peck  v.  Mayo,  14  Vermont,  33.     It  was 
an  admitted  fact  in  the  case,  that  the  legal  rate  of  inter- 
est in  Louisiana  is  live  per  cent.     It  is  clear,  therefore,- 
that  if  we  look  alone  to  the  note  itself,  in  connection  with 
the  admitted  law  of  Louisiana,  which  is  silently  incorpo- 

'  rated  into  it  as  one  of  its  terms,  the  defendant  was  only 
bound  to  pay  interest  at  the  rate  of  five  per  cent.  ;  and 
on  that  hypothesis,  the  payments  proved  satisfied  the 
note. 

[2.]  It  is  true,  however,  that  although  the  legal  effect 
of  the  note  was  a  promise  to  pay  only  five  per  cent, 
interest;  still  it  was  in  the  power  ot  the  parties  to  modify 
the  written  contract,  in  this  respect,  by  a  subsequent  ver- 
bal agreement,  founded  on  sufficient  consideration. — 
Smith  v.  Garth,  32  Ala.  373;  Stoudenmeier  v.  Williamson, 
29  Ala.  569.  And  under  a  complaint  counting  on  the 
original  contract  as  modified  by  the  subsequent  parol 
agreement,  the  plaintiff  would  be  entitled  to  recover  the 
rate  of  interest  stipulated  by  such  agreement.  But,  in  a 
suit  upon  the  note  itself,  it  is  not  allowable  to  prove  a 
subsequent  change  of  its  terms,  and  recover  upon  the 
contract  as  thus  modified.  That  would  be,  to  allege  one 
contract,  and  recover  upon  another;  which  the  law  will 
not  tolerate. — See  Taylor  v.  Pope,  3  Ala.  190. 

While,  therefore,  it  may  be  admitted,  that  there  was 


OF  ALABAMA.  637 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

evidence  tending  to  show  a  subsequent  parol  agreement, 
whereby  the  defendant  bound  himself  to  pay  interest  at 
the  rate  of  eight  per  cent.;  yet.  as  the  only  count  in  the 
complaint  was  upon  the  note  itself,  such  proof  could  be 
of  no  avail  to  the  plaintiff.  Nor  would  it  help  the  phiin- 
tiii,  to  show  that  the  defendant  had,  at  different  times, 
paid  interest  on  the  note  at  the  rate  of  eight  per  eent. 
That  fact,  if  established,  could  not,  of  itself,  operate  to 
change  the  legal  effect  of  the  note;  and  even  it  it  did,  it 
would  not  avail  the  plaintiff  in  this  suit,  who  can  only 
recover  14)011  the  contract  alleged,  according  to  which,  as 
we  have  seen,  the  rate  of  interest  to  be  paid  was  five  per 
cent. 

Judgment  affirmed. 


Ex  Parte  HILL,   in  Rb  WILLIS,  JOHNSOK,  AND 

REYNOLDS  vs.  CONFEDERATE  STATES. 

[application  ron  ruoinniTiON  to  plohaik.  judge.] 

1.  Jurisdiction  0/  lurts  to  discharge  em  r-ipf  from  c?m- 
tody  of  Confederal  Scar. — The  courts  and  judicial  officers 
of  the  State  have  ito  jurisdiction,  on  habeas  corpus,  to  discharge 
from  the  custody  of  an  enrolling  officer  of  the  Confederate  States, 
on  the  ground  of  physical  incapacity  for  military  service,  persona 
who  have  been  enrolled  as  conscripts  under  the  .several  acts  of 
cong 

2.  Wl  '''•••• — Where  a  probate  judge  lias  granted  tlio 
writ  of  '  to  an  enrolled  conscript',  whose  petition  for 
the  writ  show  that  said  judge  has  no  jurisdiction  tu 
inquire  int  1  the  volidit;  enrollment,  a  prohibition  wi 
awarded  \>y  :  iurt,  without  a  previous  application  to 
the  circuit  court,  enjoining  furthej  by  the  probate 
judge  :  and  the  aj  •  nrall- 

!v  of  the  conscript. 
■ 
commonly  called  I  it u tea  at  I 


638  SUPREME  COURT 


Ex  parte  Hill,  in  re  ..Willis  et  til.  v.  Confederate  States. 


Congress,  1st  session,   p.  39;  A.  2d   session,    p.  CI,)  are  constitu- 
tional.   (PerBtovK,  J.) 

Application  by  L.  II.  Hill,  an  officer  in  the  provieional 
army  of  the  Confederate  States,  and  the  enrolling  officer 
of  the  district  including  the  county  of  Montgomery,  for 
writs  of  prohibition,  to  be  directed  to  the  probate  judge 
of  said  county,  enjoining  and  restraining  him  from  fur- 
ther proceedings  in  the  matter  of  the  petitions  of  Asa  J. 
Willis,  E.  P.  Johnson,  and  Calvin  Reynolds,  respectively, 
for  the  writ  of  habeas  corpus,  by  which  said  petitioners 
sought  to  obtain  their  discharge  from  the  custody  of  said 
enrolling  officers. 

The  application  was  made  on  a  regular  motion  day, 
during  the  January  term,  1863;  present,  Hon.  A.  J. 
Walker,  C.  J.,  and  Stone,  J.  The  opinion  of  Chief-Jus- 
tice Walker  was  pronounced  on  the  4th  March,  1863, 
and  an  opinion  was  pronounced  by  Justice  Stone  a  few 
days  afterwards  ;  but  the  latter  opinion  was  subsequently 
withdrawn,  and  that  herewith  published  was  substituted 
in  its  stead. 

The  case  was  argued  at  the  bar,  by  P.  T.  Sayre,  on  be- 
half of  the  Confederate  States,  and  by  S.  F.  Rice  and 
Jno.  A.  Elmore,  with  whom  was  A.  B.  Clitherall,  for 
the  petitioners  in  the  court  below.  No  brief  or  memo- 
randum of  their  arguments  has  come  to  the  hands  of  the 
Reporter. 

A.  J.  WALKER,  C.  J.— [March  4th,  1863.]— Three 
persons,  who  were  taken  and  detained  in  custody  under 
the  conscript  law  bv  the  enrolling  officer,  severally  peti- 
tioned the  probate  judge  for  writs  of  habeas  corpus,  predi- 
cating their  prayers  for  a  discharge  upon  the  ground  of 
exemption  from  conscription  on  account  of  physical  dis- 
ability ;  and  the  writs  were  awarded  by  that  officer.  The 
enrolling  officer,  contending  that  the  judicial  tribunals 
of  the  State  have  no  jurisdiction  over  the  matter  of  his 
detention  of  those  persons  as  conscripts,  now  applies  to 
this  court  for  writs  of  prohibition.  Thus  the  duty  de- 
volves upon    this  court,  of  deciding  whether  a  State  tri- 


OF  ALABAMA.  639 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


bunal  has  authority  to  discbarge  one  who  has  been  taken 
and  is  detained  by  the  enrolling  officer  as  a  conscript, 
upon  the  ground  of  1 1 is  exemption  for  the  reasons  aUove 
stated. 

The  first  section  of  the  act  of  congress,  approved  April 
16th,  1862,  authorizes  the  president  to  call  (kit  and  [dace 
in  the  service  of  the  Confederate  States  men  between  the 
ages  of  eighteen  and  thirty-live  years,  who  were  not 
legally  exempted  from  military  service.  The  amendatory 
act  of  the  27th  September,  1862,  in  language  similar  to 
that  employed  in  the  original  law,  extends  the  authority 
to  men  between  the  ages  of  thirty-five  and  forty-live;  and 
requires  the  president,  if  he  should  not  call  out  all  the 
persons  between  the  specified  ages,  to  discriminate,  by 
limiting  his  call  to  persons  of  some  particular  age  under 
forty-five.  By  an  act,  approved  21st  April,  1862,  certain 
descriptions  of  persons  were  exempted  from  enrollment 
for  service  in  the  armies  of  the  Confederate  States.  That 
act  was  repealed  by  one  adopted  on  the  11th  October, 
1862,  which  exempts  "from  military  service  in  the  armies 
of  the  Confederate  various   classes    of  persons 

therein  described. 

The  two  acts  of  16th  April  and  27th  September  impose 
upon  the  authority  to  conscribe  a  restriction  to  persons 
not  legally  exempted.  The  persons  exempt  arc  not  de- 
scribed by  name,  but  by  classes,  defined  by  reference  to 
bodily  or  mental  incapacity,  to  the  incumbency  of  certain 
offices,  the  practice  of  certain  useful  arts,  the  profession 
of  some  specified  religions  creeds,  and  other  distinguish- 
ing pecnliarit'n  .  As  the  authority  to  conscribe  does  not 
extend  to  the  individuals  who  compose  those  classes,  it 
can  only  be  exercised  by  ascertaining  the  prisons  to 
whom  the  peculiarities  distinguishing  the  different  el; 
pertain.     Tb  tain  men  t  of  the  legal  subjects  of  con- 

scription is  an    unavoidable  si  ep   in  the  proceeding.     In 
quiry  and    decision,  upon  this   point,  are   necessarily  in- 
volved in   thi  >wer  fo  con- 
scribe all  within  the  pretori  bed  ages,  "who  are  not  legally 
exempted  from  military  sen, 


040  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

The  selection  irom  the  community  at  large  of  the  sub- 
jects of  conscription,  involving  inquiry  and  decision  as 
to  the  status  of  every  man,  was  obviously  susceptible  of 
accomplishment  by  the  executive  department  of  the  gov- 
ernment, only  through  the  agency  of  officers,  clothed 
with  the  requisite  authority.  Congress  therefore  has 
authorized  the  appointment  of  such  officers.  By  the 
third  section  of  the  act  of  16th  April,  1862,  the  president 
is  empowered  to  appoint  officers,  charged  with  the  duty 
of  enrolling  conscripts,  "in  accordance  with  rules  and  regu- 
lations to  be.  'prescribed  by  him."  A  later  act,  approved  8th 
October,  1862,  directs,  that  enrollments  shall  be  made 
under  instructions  from  the  war  department,  and  reported  by 
the  enrolling  officer.  Furthermore,  an  act,  approved  Oc- 
tober 11th,  1862,  authorizes  the  assignment  of  oue  or 
more  surgeons  to  the  dutv  of  examining  those  enrolled  ; 
and  declares,  that  "the"  decision  of  such  surgeon  or  sur- 
geons, "  under  regulations  to  be  established  by  the  secretary 
of  wdr"y  as  to  physical  and  mental  capacity,  shall  befinak 

The  employment  of  appropriate  officers  to  execute  the 
conscript  law,  is  thus  clearly  authorized.  Every  act  of 
conscription  by  such  officers  must  be  done  pursuant  to  a 
decision  based  upon  an  inquiry,  in  which  the  hearing  and 
weighing  of  evidence  must  often,  if  not  always,  be  neces* 
sary.  Without  an  inquiry  and  judgment  as  to  the  lia- 
bility to  conscription,  no  enrollment  could  be  made,  be- 
cause it  could  not  otherwise  be  determined  who  were 
subject  to  conscription.  This  authority  to  inquire  and 
decide  is  not,  however,  left  to  implication  from  the  na- 
ture of  the  act.  There  is  an  express  authority  to  decide 
upon  the  question  of  exemption  on  account  of  mental  or 
physical  incapacity,  and  the  decision  of  the  tribunal  de- 
.  signated  is  made  final.  The  existence  of  such  authority 
is  clearly  indicated  in  the  phraseology  of  the  law,  declar- 
ing, that  "all  persons  who  shall  i\e  hell  unfit  for  military 
service  in  the  field,  by  reason  of  bodily  or  mental  inca- 
pacity,-under  the  rules  to  be  prescribed  by  the  secretary 
of  war,"  shall  be  exempt.  The  holding  or  deciding  per- 
sons to  be  unfit  for  military  service,  under  rules  prescribed 


OF  ALABAMA.  641 


Ex  parte  Hill, 'in  re  Willis  et  al.  v.  Confederate  States. 

^ ; - 

by  the  secretary  of*  war,  must  be  by  the  officers  appointed 
to  execute  the  law.  The  authority  to  bear  evidence  and 
decide,  is  a  plain  inference  from  the  provision  in  the  act 
of  11th  October,  1862,  that  the  claim  of  certain  classes  of 
artisans  is  to  be  supported  by  affidavit,  which  shall  only 
be  prima -facie  evidence  of  the  facts  stated.  Furthermore, 
the  general  idea,  that  the  power  of  investigation  and  de- 
cision is  a  part  of  the  authority  to  be  exercised  by  tho 
respective  officers,  is  very  clearly  brought  to  view  in  the 
clause  of  the  same  act,  which  requires  the  secretary  of 
war,  upon  evidence,  to  judge  whether  the  exempted  arti- 
sans have,  by  their  conduct,  forfeited  the  privilege.  It 
must  be  noted,  too,  that  the  duties  of  the  officers  are  to 
be  discharged  under  rules  and  regulations  to  beprcscribed 
by  the  secretary  of  war.  Surely,  these  rules  and  regula- 
tions are  not  contemplated  to  be  merely  the  guides-ofthe 
subordinate  officers,  in  performing  the  acts  of  writing 
down  the  names  of  the  conscripts,  and  taking  charge  of 
them.  They  were  destined  to  control  and  direct  them  in 
the  higher,  more  important,  and  more  difficult  office  of 
inquiring  and  judging  as  to  the  liability  to  conscription. 
The  execution  of  the  law  is  utterly  impracticable,  if  there 
be  uo  authority  to  ascertain  and'judge  who  are  the  legal 
subjects  of  conscription.  With  the  utmost  confidence,  I 
assert  the  proposition,  that  the  officers  employed  in  the 
execution  of  the  law  are  clothed  with  authority  to  judge 
what  persona  fall  within  its  operation.  The  exercise  of 
this  authority  i  an  official  duty,  to  be  performed  under 
the  guidance  of  rules  prescribed  by  the  secretary  of  war- 
A  State  judge,  in  discharging  one  taken  as  a  conscript' 
Upon  the  ground  ibat  he  was  not  legally  liable  to  con? 
scription,  would  supervise  and  control  an  officer  of  the 
Confederate  States,  in  the  performance  of  an  official  duty, 
and  in  the  exercise  of  a  legal  authority.  He  would,  fur- 
thermore, annul  the  decision  which  such  officer  was  au- 
thorized to  make,  and  abrogate  the  enrollment  1 
upon  that    decision.     Th  the    question    of 

amenability  to  conscription   is  within   the  scope   of  the 
authority  exercised.     An  incorrect  decision   would  bo  an 


642  SUPREME  COURT 

. • i 

Ex  parte  Hill,  in  re  Willis  et  nl.  v.  Confederate  States. 

erroneous  exercise  of  a  subsisting  authority — not  a  mere 
usurpation.  The  officer  is  perfectly  within  the  limit  of 
his  authority,  when  he  investigates  and  decides;  and, 
though  he  may  err,  he  is  not  an  usurper.  Neither  the 
absolute  invalidity  of  the  conscription,  nor  a  liability  in 
trespass,  would  result  from  an  incorrect  decision. — Duck- 
worth v.  Johnson,  7  Ala.  578;  Savacool  v.  BoughtoD, 
5  Wend.  170  ;  Easton  v.  Calender,  11  ib.  90. 

The  principle  ;s  illustrated  in  the  case  of  a  justice,  err- 
ing the  exercise  of  his  authority  to  commit  offenders; 
and  of  assessors,  who  incorrectly  decide  that  a  given  per- 
son belongs  to  a  class  liable  to  be  taxed.  The  levy  of  a 
fieri  facias  by  a  marshal  of  the  Confederate  States,  upon 
property  not  belonging  to  the  defendant,  does  not  pre- 
sent an  analogous  question.  He  is  simply  authorized  by 
the  process  to  do  a  particular  thing.  He  is  not  called 
upon  by  the  law  to  decide  anything.  He  has  none  of  the 
attributes  of  a  tribunal  armed  with  authority  to  investi- 
gate and  decide  questions.  His  judgment,  of  course,  he 
exercises,  in  determining  whetln  r  the  property  upon  which 
he  levies  belongs  to  the  defendant;  but,  upon  aprinciple 
of  public  policy,  he  decides  at  his  own  peril.  The  exer- 
cise of  his  judgment  is  for  his  own  protection,  and  not 
by  authority  of  law.  His  process  authorizes  him  to  levy 
upon  the  defendant's  property — not  to  adjudge  the  ques- 
tion of  the  title  to  property.  It  neither  requires  him  to 
construe  a  law,  nor  to  decide  upon  evidence  as  to  the 
cases  that  come  within  its  operation.  The  law  under 
which  he  acts,  and  which  governs  him,  unlike  that  under 
which  the  enrolling  officer  acts,  has  not  deemed  it  neces- 
sary to  bestow  authority  for  an  investigation  and  quasi- 
judicial  decision,  preliminary  to  his  action  ;  but,  in  re- 
quiring him'  to  act  at  his  own  personal  peril,  has  expressly 
repudiated  such  an  idea.  No  act  of  congress  prescribing 
a  marshal's  authority,  nor  any  construction  thereof,  can 
be  drawn  in  question  in  a  suit  against  him  for  the  levy 
ot  process  against  one,  upon  the  property  of  another. 
The  simple  inquiry,  in  such  a  suit,  would  be,  whether  the 
particular  chattel.  UDder  the  general  law  governing  prop- 


OF  ALABAMA. _64S 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


erty,  belonged  to  the  one  person  or  the  other;  while  at 
every  step  in  the  cases  now  before  us,  the  court  must  ex- 
pound the  act  of  congress  marking  out  the  authority  of 
the  officer.  The  decisions,  therefore,  as  to  the  power  of 
the  State  courts  over  the  United  States  marshals,  erring 
in  the  execution  of  their  process,  have  no  hearing  upon 
the  question  before  us.  The  same  distinction  applies  to 
an  arrest  of  one  person,  by  virtue  of  process  against 
another.— ^Bruen  v.  Ogden,  C  Hals.  870;  Dunn  v.  Vail, 
7  Mar.  La.  41G  ;  Slocura  v.  Mayberry,  2  Wheaton,  1. 

The  officer  charged  with  the  execution  of  the  conscript 
law,  not  only  has  authority  to  investigate  and  decide,  but 
he  is  required  to  do  so  according  to  regulations  prescribed 
by  the  secretary  of  war.  The  question  of  these  cases, 
then,  is  narrowed  down  to  this:  can  a  State  judge,  by 
writ  of  habeas  corpus,  supervise,  control,  and  annul  the 
act  of  officers  of  the  Confederate  States,  done  in  the  ex- 
ercise of  authority  given  by  the  law  of  that  government, 
and  required  to  be  done  under  regulations  prescribed  by 
the  secretary  of  war? 

It  is  proper  to  approach  the  interesting  question  above 
stated,  by  an  observation  in  reference  to  the  relation 
existing  between  the  government  of  the  Confederacy  and 
the  government  of  the  several  States  which  compose  it. 
The  government  of  the  Confederacy  possesses  the  powers 
delegated  by  the  constitution  ;  and  the  States  retain  their 
original  powers,  except  so  far  as  they  may  be  affected  by 
the  grants  or  prohibitions  of  the  constitution  of  the  Con- 
federate States.  While  the  Confederate  government  ex- 
ists by  virtue  of  delegated  authority,  its  powers,  within 
their  appropriate  boundary,  are  not  subordinate  to  those 
of  the  States.  On  the^contrary,  it  is  expressly  declared 
in  the  constitution,  that  the  constitution,  and  the  laws  of 
the  Confederate  States  made  in  pursuance  thereof,  and  all 
treaties  made  under  the  authority  of  the  Confederate 
States,  shall  be  the  supreme  law  of  the  land.  The  au- 
thority of  all  governments  must  be  exercised,  and  must 
reach  the  subjects  of  its  operation,  through  the  agency  of 
officers.     The  officers  of  the  Confederate  States,   and  of 


644  SUPREME  COURT 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

the  several  States,  must  exercise  their  functions,  and 
apply  the  authority  of  their  respective  governments/ 
within  the  same  territorial  area.  It  is  the  clearest  deduc- 
tion of  reason,  that  the  officers  of  neither  of  these  dis- 
tinct powers,  operating  within  the  same  territorial  limits, 
and  performing  proper  functions,  can  be  subordinated  to 
the  other,  except  as  authorized  by  the  constitution,  with- 
out detriment  to  the  harmonious  working  of  our  compli- 
cated system,  and  peril  to  the  rights  and  benefits  which 
that  system  was  designed  to  secure. 

The  analogy  (in  all  respects  which  concern  our  subject) 
between  our  government  and  that  of  the  United  States 
enables  me  to  draw  from  the  history  of  the  past  an  illus- 
tration .of  the  idea  which  I  am  striving  to  develop.  The 
fugitive-slave  law  was  passed  to  protect  and  maintain  a 
clear  constitutional  right  of  a  class  of  citizens  in  the 
United  States,  whom  the  fluctuations  of  time  had  local- 
ized in  less  than  a  moiety  of  the  States.  In  most  of  the 
other  States,  an  antagonism  of  sentiment  to  that  right 
gradually  intensified  into  fanaticism,  and  extended  to  the 
persons  to  whom  the  right  appertained.  A  right  of  sub- 
ordinatingthe  authority  of  the  officers  deputed  to  execute 
that  law,  to  the  control  of  local  State  tribunals,  infected 
by  the  feeling  prevalent  in  those  States,  was  asserted  and' 
maintained.  In  many  localities,  the  execution  of  the 
law  was,  by  this  means,  prevented  ;  and  the  just  claim  of 
the  people  of  the  slaveholding  States,  to  the  maintenance 
of  a  constitutional  right,  was  defeated.  The  powers  of 
the  Confederate  government  are  given  to  it  for  the  bene- 
fit and  protection  of  all  the  people  in  all  the  States  ;  and 
the  historic  lesson  teaches  us,  that  the  execution  of  the 
laws,  passed  by  virtue  of  those  powers,  can  not  be  safely 
left  to  the  control  of  local  tribunals.  'The  absence  of  the 
danger,  under  our  system,  can  only  be  argued  by  arro- 
gating to  ourselves  a  freedom  from  the  frailties  of  human 
nature.  * 

The  supreme  court  of  the  United  States,  faithful  to 
the  constitution,  while  every  other  branch  of  the  govern- 
ment seemed  to  conspire  its  overthrow,  through  its  veu- 


OF  ALABAMA.  645 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

erable  ami  illustrious  chief-justice,  announced  an  opinion 
upon  the  assumption  by  the  court  of  Wisconsin  of  the 
authority  to  thwart  the  execution  of*  the  fugitive-slave 
law  in  that  State.  The  case  was  Ableman  v.  Booth,  and 
the  United  States  v.  Booth,  reported  in  21  Howard,  506. 
The  entire  opinion  seems  to  have  had  fhe  approval  of 
each  one  of  the  nine  judges  c  imposing  the  court;  which 
was  rarely  the  case,  where  questions  of  constitutional  law- 
were  presented.  In  that  opinion  it  is  said:  "Thepowersbf 
the  genera]  government,  and  of  the  State,  although  both 
exist,  and  are  exercised,  within  the  same  territorial  limits, 
are  vet  separate  and  distinct  sovereignties. aetingseparately 
and  independently  of  each  other,  within  their  respective 
spheres.  And  the  sphere  of  action  appropriated  to  the 
United  States  is  as  far  beyond  the  reach  of  the  judicial 
process  issued  by  a  State  judge,  or  a  State  court,  as  if  the 
line  of  division  was  traced  by  landmarks  and  monuments 
visible  to  the  eye."  In  this  extract,  and  in  other  parts 
of  the  opinion,  the  proposition  is  maintained,  that  neither 
government  can  pa^-s  the  Jine  of  division  between  their 
respective  powers;  and  the  court  further  asserts,  that  the 
United  States  marshal,  after  legally  showing  his  authority 
to  the  State  tribunal,  would  be  bound  to  resist  its  further 
interference.  The  practical  e fleet  of  the  law,  as  declared 
in  that  case,  is,  that  a  State  court,  or  officer,  has  no  right 
of  control  over  the  conduct  of  the  officers  of  the  general 
government,  in  the  exercise  of  an  authority  bestowed  by 
its  law. 

Nor  was  this  principle,  when  announced  in  the  case 
above  named,  at  all  new  in  the  jurisprudence  of  the 
United  States.  I  avail  myself  of  Chancellor  Kent's  con- 
densation of  the  decisions  upon  that  subject,  and  of  the 
authority  of  his  great  name,  in  behalf  of  ni}'  argument, 
in  the  following  extract  from  his  Commentaries: — 
"No  Slate  can  control  the  exercise  of  any  authority 
under  the  Federal  government.  The  State  legislatures  cau 
not  annul  the  judgments,  nor  determine  the  extent  of 
the  jurisdiction,  of  the  courts  of  the  Union.  This  was 
attempted  by  the  legislature  of  Pennsylvania,  and  de- 


646  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


clared  to  be  inoperative  and  void  by  the  supreme  court 
of  the  United  States,  in  the  case  of  the  United  States  v. 
Peters,  5  Cranch,  115.  *  *  '  *  *  It  has  also  been 
adjudged,  that  no  State  court  has  authority  or  jurisdic- 
tion to  enjoin  a  judgment  of  the  circuit  court  of  the 
United  States,  or  to  stay  proceedings  under  :t.  This  was 
attempted  by  a  State  court  in  Kentucky,  and  declared  to 
be  of  no  validity  by  the  supreme  court  of  the  United 
States,  in  McKim  v.  Voorhies,  7  Cranch,  279.  No  State 
tribunal  can  interfere  with  seizures  of  property,  made  by 
revenue  officers  under  the  laws  of  the  United  States;  nor 
interrupt,  by  process  of  replevin,  injunction,  or  otherwise, 
the  exercise  of  the  authority  of  the  Federal  officers;  and 
any  intervention  of  State  authority,  for  that  purpose,  is 
unlawful.  This  was  so  declared  by  the  supreme  court, 
in  Slocum  v.  Mayberry,  2  Wheat.  1.  Nor  can  a  State 
court  issue  a  mandamus  to  an  officer  of  the  United  States. 
This  decision  was  made  in  the  case  of  McCIuns;  v.  Silli- 
man,  6  Wheat.  598;  and  it  arose  in  consequence  of  the 
supreme  court  in  Ohio  sustaining  a  jurisdiction  over  the 
register  of  the  land-office  of  the  United  States,  in  respect 
to  his  ministerial  acts  as  register,  and  claiming  a  right  to 
award  a  mandamus  to  that  officer,  to  compel  him  to  issue 
a  final  certificate  of  purchase.  The  principle  declared  b}r 
the  supreme  court  was,  that  the  official  conduct  of  an 
officer  of  the  government  of  the  United  States  can  only 
be  controlled  by  the  power  that  created  him.  If  the  offi- 
cer of  the  United  States  who  seizes,  or  the  court  which 
awards  the  process  to  seize,  has  jurisdiction  of  the  sub- 
ject-matter, then  the  inquiry  into  the  validity  of  the  seiz- 
ure belongs  exclusively  to  the  Federal  courts.  But,  i£ 
there  be  no  jurisdiction  in  the  instance  in  which  it  is 
asserted — as  if  a  marshal  of  the  United  States,  under  an 
execution  in  favor  of  the  United  States,  against  A, 
should  seize  the  person  or  property  ol  B — then  the  State 
courts  have  jurisdiction  to  protect  the  person  and  prop- 
erty so  illegally  invaded ;  and  it  is  to  be  observed,  that  the 
jurisdiction  of  the  State  court  in  Rhode  Island  was  ad- 
mitted by  the  supreme  court  of  the  United  States,  in 


OF  ALABAMA.  647 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  Suites. 

Slocum  v.  Mayberry,  upon  that  very  ground." — 1  Kent's 
Com.  409-10-11.  See,  also,  McNut  v.  Bland,  2  How.  17. 
As  the  officers  authorized  to  execute  the  conscript  law, 
have  jurisdiction  to  examine  evidence  and  decide  upon 
the  question  of  amenability  to  conscription,  the  authority 
of  Chancellor  Kent,  as  exhibited  in  the  foregoing  extract, 
is  wholly  opposed  to  the  jurisdiction  claimed  for  the  pro- 
bate judge  in  these  ca3es.  Judge  McLean,  of  the  supreme 
court  of  the  United  States,  holding  a  circuit,  court  in  In- 
diana, in  a  charge  to  a  jury  trying  a  case  wherein  a  mas- 
ter sought  to  recover  damages  for  the  taking  of  his  slaves 
from  his  custody  under  a  habeas  corpus  issued  by  a  Michi- 
gan court,  held,  that  a  State  tribunal  could  not  release 
from  custody  persons  held  under  the  authority  of  the 
United  States,  and  procured  from  the  jury  a  verdict  for 
the  full  measure  of  the  master's  damages. — N'orris  v.  New- 
ton. 6  McLean,  92.  Judge  Neisou,  of  the  supreme  court 
of  the  United  States,  in  a  charge  to  the  grand  jury,  main- 
tallied  the  same  doctrine  in  1851. — Hurd  on  Habeas  Cor- 
pus, 198.  Judge  Cheves,  of  South  Carolina,  in  a  learned 
opinion,  reported  in  the  12th  vol.  Niles'  Register,  declined 
to  take  jurisdiction  over  the  matter  of  the  discharge  of 
one  imprisoned  under  process  issued  by  the  authority  of 
the  United  States;  and  the  recorder  at  Charleston  has 
recently  followed  the  principle  of  that  decision,  in  refu- 
sing to  interfere  under  a  writ  of  h<<hr<(,s  corpus  with  the 
detention  in  the  army  of  an  infant  only  sixteen  years  of 
age  ;  maintaining,  that  the  precedent  set  bv  Judge  Cheves 
has  since  been  acquiesced  in  as  a  correct  exposition  of  the 
law  in  South  Carolina. — Ex  parte  Rhodes,  12  Niles'  R. 
264  ;  In  the  matter  of  Benjamin  Sauls,  Charleston  Courier 
of  20th  October,  1862.  In  the  State  of  New  York,  speak- 
ing tor  himself,  and  not  as  the  organ  of  the  court,  Chan- 
cellor Kent  laid  down  the  principle  more  recently  asserted 
in  the  case  of  Ablcman  v.  Booth. — Ex  parte  Ferguson, 
9  Johns.  239.  It  appears,  however,  that  this  opinion 
never  controlled  the  action  of  the  New  York  courts;  for 
they  seem  to  have  since  exercised  the  controverted  juris- 


648  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  efc  al.  v.  Confederate  States. 

diction. — Ex  parte  Stacy,  10  Johns.  328 ;  Carlton's  case, 
7  Cow.  471 ;  United  States  v.  Wygnall,  5  Hill,  1G. 

There  are  several  decisions  by  State  courts,  which  hold 
that  they  have  the  power  to  discharge  persons  improperly 
imprisoned  under  the  authority  of  the  United  States,  or 
even  under  its  process. — -Almeida's  case,  12  Niles'  Reg. 
415 ;  Lockington's  case,  5  Hall's  Law  Journal,  801 ;  Com- 
monwealth v.  Fox,  7  Barr,  336;  State  v.  Dimick,  12  N. 
II.  194;  Commonwealth  v.  Harrison,  LI  Mass.   63;  The 
State  v.   Brearly,   2   South.  555.     Several  of  these  cases 
pertain   to  the  question  of  the  discharge  of  soldiers,  en- 
listed during  their  minority,  by  contracts  which  the  act 
of  congress  declared  void.     I  will  not  pause  to  inquire, 
whether  they  are  not  distinguishable  from   these  cases ; 
for,  if  analogous,  I  am  not  willing  to  follow  them.    They 
were   decided   before  the  supreme  court  of  the  United 
States  made  its  decision  in  Ableman  v.  Booth,  herein  be- 
fore noticed.     I  can  not  reconcile  with  sound  principle, 
or  real  expediency,  the  proposition,  that  an  officer  of  the 
Confederacy,  when  engaged  in  the  execution  of  an  act  of 
congress,  and  acting  within  the  sphere  of  his  authority, 
can  be  subject  to  the  control  of  the  judicial  tribunals  of 
the  States.     It  is  natural  that  the  judicial  mind  should 
approach  a  question  which   concerns  the   liberty  of  the 
citizen,  with  a  profounder  solicitude,  and  a  more  sensitive 
delicacy;  nevertheless,  the  principle  is  the  same,  when 
the  authority  of  the  government  touches  the  property  of 
the  citizen,  as  when  it  touches  his  person.     And  the  same 
doctrine  which  gives  to  the  State  tribunals  a  power  to 
supervise  such  official  action  as  concerns  the  liberty  of  the 
citizen,  must  subject  to  the  arbitrament  of  the  humblest 
State  officer,  clothed  with  judicial   authority,  the  regu- 
larity and  legality  of  the  acts  of  all  the  officers  of  the 
government,  whose  functions  reach  the  property  or  money 
of  the  people.     The  power  of  taxation,  of  collecting  the 
customs,  of  regulating  foreign  commerce  and  commerce 
between  the  States,  of  restoring  fugitive  slaves,  of  raising 
nnd  supporting  armies,  and  all  the  other  powers  of  gov- 
ernment, would  be  exercised  by  its  officers  under  its  au- 


OF  ALABAMA.  649 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


thority,  subject  to  the  controlling  interference  of  the  local 
tribunals,  within  the  jurisdiction  of  which  the  power 
should  chance  to  be  in  process  of  execution.  Authority 
conferred  by  all  the  States,  to  be  exercised  by  a  govern- 
ment, in  the  administration  of  which  all  the  people  and 
all  the  States,  directly  or  indirectly,  participate,  would  be 
ad  measured  and  regulated  by  the  tribunals  of  particular 
localities.  A  law  for  the  raising  of  revenue,  or  of  armies, 
might  receive  the  acquiescence  and  prompt  obedience  of 
a  majority  of  the  States  ;  while  a  minority,  by  aid  of  their 
courts,  utterly  thwarted  its  execution  within  their  limits. 
Thus  a  burden,  designed  to  be  common,  would  become 
partial.  And  a  clash  of  authority  between  the  States  and 
the  Confederate  government  would  lead  to  disastrous  re- 
sults. 

The  officers,  executing  the  law  of  conscription,  are  re- 
quired to  act  under  rules  given  them  from  the  war  depart- 
ment. Guided  by  those  rules,  the  officers  may  attain  a 
conclusion  altogether  variant  from  that  which  a  State 
judge,  either  uninformed  as  to  those  rules,  or  not  recog- 
nizing their  obligation  upon  him,  would  attain.  I  pre- 
sume, that  those  who  argue  the  subordination  of  the  Con- 
federate officers  to  the  State  tribunals,  would  repudiate 
the  idea  of  the  government  of  those  tribunals  by  regula- 
tions of  the  war  department;  for  theargument  which  main- 
tains a  supervisory  authority  over  the  subordinate  officer 
would  as  well  apply  to  his  superior.  Are  we,  then,  to  have 
an  officer,  obligated  by  rules  and  regulations  from  the  war 
department,  subject  to  the  supervision  and  control  of 
another,  who  is  not  bound  to  an  observance  of  them  ?  Are 
wc  to  have  an  officer  convicted  as  a  usurper,  ami  made 
amenable  to  dan  a  trespasser,  who  has  acted    cor- 

rectly according  to  regulations  which  govern  him,  but 
who  is  to  be  tried  by  a  tribunal  not  recognizing  them  ? 
These  inquiries  suggesl  a  very  CODolusive  argument  against 
the  assumption  of  State  authority  in  these  cases. 

I  do   not  controvert  the  right  of  State  courts  to   inter- 
pret the  constitution,  treaties,  and  laws  of  the  Confeder- 
ate States,  and  treat  as   nullities  all   laws  infringing  the 
42 


650  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate 

constitution,  in  cases  over  which  they  have  jurisdiction. 
The  point  of  my  argument  is,  that  these  cases  are  without 
the  jurisdiction  of  the  probate  judge,  and  he  can  not  ad- 
judge any  thing  concerning  the  rights  of  the  parties. 

Nor  do  I  controvert  the  general  proposition,  that  the 
courts  of  the  States  have  concurrent  jurisdiction  over  all 
subjects  cognizable  in  the  courts  of  the  Confederate  States, 
when  it  is  not  otherwise  provided  by^aw.  But  I  think, 
that  the  general  rule  must  betaken  with  the  exception  of 
those  cases  in  which  the  execution  of  the  laws  of  the  Con- 
federate States  by  its  officers  is  to  be  supervised  and  con- 
trolled. 

I  am  not  unmindful  of  the  argument  ah  inconvenienti, 
which  has  been  made.  It  may  be,  that  access  to  a  judi- 
cial officer  of  the  Confederate  States  would,  at  present, 
be  inconvenient ;  but  if  so,  it  is  an  evil  which  could  easily 
be  avoided,  by  an  act  of  congress  increasing  the  number 
of  officers,  and  adjusting  their  locations  with  a  view  to 
the  convenience  of  the  people.  The  postponement  of 
this  duty  by  congress  can  not  justify  us  in  the  abandon- 
ment of  a  principle,  or  in  the  setting  of  a  pernicious  pre- 
cedent. Moreover,  it  must  be  observed,  that  the  g<Hvern- 
ment  of  the  Confederate  States  has  not  been  so  unmind- 
ful of  the  liberty  of  the  citizen,  as  to  leave  it  to  the  irre- 
visable  decision  of  the  subordinate  enrolling  officer.  On 
the  contrary,  an  appeal  to  the  commandant  of  conscripts, 
and  thence  to  the  secretary  of  war,  is  provided  by  the 
regulations  prescribed  for  the  officers  employed  in  the 
execution  of  the  law;  and  I  presume  the  appeal  could  be 
extended  to  the  president  himself.  I  am  not  prepared  to 
admit,  that  this  succession  of  officers  does  not  afford  a 
reasonable  assurance  of  the  maintenance  of  justice,  right 
and  law.  At  least,  no  one  can  justly  complain  that  no 
remedy  against  an  erroneous  decision  is  provided,  until 
he  has  tested  those  which  the  government  extends  to  him. 
And  besides  all  this,  a  resort  may  be  had  to  the  judge  of 
the  court  of  the  Confederate  States.  The  government  of 
the  Confederate  States  was  organized  by  the  States,  and 
its  laws  have  been  passed  and  its  officers  selected,  directly 


OF  ALABAMA.  651 


Ex  parte  Hill,  in   re  Willis  et  al.  v.  Confederate  States. 

or  indirectly,  by  the  States  and  the  people  ;  and  it  should 
have  the  generous  confidence  and  the  manly  support  of 
the  country,  in  the  present  struggle  for  independence  and 
liberty.  r 

If  it  be  true  that,  at  common  law,  the  facts  alleged  in 
the  return  to  a  habeas  corpus  can  not  be  contested  ;  and  if 
no  remedy  for  that  vice  in  the  law  had  been  provided,  the 
blame  would  be  due  to  the  State  government.  But  in 
fact,  in  this  State,  and  in  all  the  other  States  of  the  Con- 
federacy, as  far  as  our  examination  lias  been  extended, 
there  is  an  express  provision  for  the  contestation  of  the 
return. — Code,  §  3732.  U\  therefore,  a  §dee  return  should 
be  made,  that  the  petitioner  was  held  by  a  duly  appointed 
officer  by  competent  authority,  it  would  be  the  duty  of 
the  probate  judge  to  hear  a  contestation  of  the  return, 
and  not  to  remand  the  prisoner  if  the  return  was  false.  In 
these  cases,  the  petitions  themselves,  when  properly  con- 
strued, show  the  want  of  jurisdiction  in  the  probate  judge  ; 
and  it  was  his  duty  to  have  rejected  them  in  limine. — Mr. 
parte  Tobias  Watkins,  3  Peters,  201. 

[2.]  The  cases  of  Ex  parte  Burnett,  30  Ala.  4G1,  and 
Ex  parte  Smith,  23  &.,are  deemed  conclusive  authority  in 
favor  of  the  right  to  apply  to  this  court  tor  a  prohibition, 
without  a  previous  application  to  an  inferior  court.  The 
probate  judge,  in  granting  the  habeas  corpus  upon  the  pe- 
titions,  exercised  an  authority  that  did  not  belong  to  him; 
and  there  is  no  other  remedy  than  the  writ  of  prohibition. 
It  is  clear,  therefore,  that  that  writ  is  the  proper  remedy. 
Ex  parte  Morgan  Smith,  23  Ala.  94;  Ex  parte  Walker, 
25  Ala.  si ;  ExparU  Greene  k  Graham,  20  Ala.  52.  The 
petitioner  for  the  prohibition  is  the  party  whose  custody 
of  the  conscript  is  interfered  with,  and  we  think  he  may 
make  this  application. 

If  we  have  the  facts  of  these  cases  correctly  presented 
to  us  in  the  petitions,  the  foregoing  opinion  is  decisiveof 
them.  But,  as  the  tacts  do  not  appear  of  record,  we  deem 
it  the  safer  course  to  issue  a  rule  nisi  to  the  probate  judge. 
3  Blacks.  Com.  113-14. 


652 SUPREME  COURT    • 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

STONE,  J. — Three  several  petitions  for  habeas  corpus 
were  presented  to  the  judge  of  probate  of  -Montgomery 
county,  by  the  petitioners,  Asa  J.  Willis,  Edward  P.  John- 
son, and  Calvin  -Reynolds;  each  alleging  that  he  was  held 
a  prisoner  in  custody  by  the  enrolling  officer,  under  the 
claim  and  pretense  that  he,  the  petitioner,  was  liable  to 
do  military  duty ;  while  each  petitioner  averred  in  his 
petition,  that  he  was  advised  and  believed  he  was  exempt 
from  military  service  in  the  field,  by  reason  of  physical 
incapacity  ;  each  petition  setting  forth  the  particular  dis- 
ease which,  it  was  alleged,  operated  the  exemption.  In 
neither  of  said  petitions  is  it  averred,  that  the  petitioner 
has  been  examined  .by  an  examining  surgeon,  or  board  of 
examination  ;  nor  is  it  averred  thart  he  has  been  held  unfit 
for  military  service  in  the  field,  by  reason  of  bodily  incapacity 
or  imbecility.  On  the  contrary,  it  is  obvious  from  the  face 
of  each  petition,  that  the  applicant  seeks  enlargement, 
not  on  the  ground  that  he  has  been  held  unfit  for  military 
service,  but  that  he  is  in  fact  unfit  to  perform  such  ser- 
vice, by  reason  of  bodily  incapacity  ;  which  fact  he  seeks 
to  establish  by  evidence  on  the  trial  of  the  habeas  corpus. 

The  judge  of  probate  issued  writs  of  habeas  corpus  in 
the  several  cases;  and  the  enrolling  officer,  denying  the 
jurisdiction  of  the  judge  of  probate  iu  the  premises,  prays 
for  writs  of  prohibition,  directed  to  that  officer,  command- 
ing him  to  surcease  from  the  further  exercise  of  such  au- 
thority. The  question  is  thus  presented,  has  the  judge 
of  probate  jurisdiction  of  the  cases  made  by  the  several 
petitions?  I  hold,  that  he  has  not;  and  I  shall  proceed, 
as  briefly  as  I  can,  to  state  the  reasons  which  lead  my  mind 
to  this  conclusion. 

The  Confederate  government,  being  engaged  in  war, 
has  the  unquestioned  right  to  call  the  male  residents  of 
the  Confederacy  into  the  servfce.  "As  war  can  not  be 
carried  on  without  soldiers,  it  is  evident,"  says  Mr.  Vat- 
tel,  "that  whoever  has  the  right  of  making  war,  has  also 
naturally  that  of  raising  troops." — Page  294.  "Every 
citizen  is  bound  to  serve  and  defend  the  State  as  far  as 
he  is  capable." — lb.      "]STo  person   is   naturally  exempt 


OF  ALABAMA.  653 


Ex  parte  Hill,   in  re  Willis  et  al.  v.  Confederate  States. 

from  taking  up  arms  in  defense  of  the  State,  the  obliga- 
tion of  every  member  of  society  being  the  same." — lb. 
Allegiance,  or  the  duty  to  defend  the  State  when  assailed, 
is  correlative  to  protection.  The  government  owes  the 
latter  to  the  citizen;  the  citizen,  the  former  to  the  gov- 
ernment.— 1  Blacks.  Com.  oO'J ;  case  of  Isaac  Williams, 
2  Crajjch's  Rep.  82,  in  note. 

The  acts  of  congress,  known  as  the  "conscript  laws," 
are  constitutional.  The  constitution  of  the  Confederate 
States  (art.  1,  see.  8,  sub-divisions  11,  12,  13,  14)  confers 
on  congress  the  power  ltto  declare  war,"  "to  raise  and 
support  armies,"  "to  provide  and  maintain  a  navy,"  and 
"to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces."  These  are  specific  grants  of 
power,/Tn  language  free  from  ambiguity;  and  iu  neither 
of  the/clauses  quoted,  is  found  a  word  or  syllable,  which 
definekthc  mode  or  manner  of  executing  the  power.  The 
same  cf-buse  which/gives  the  power  to  raise  armies,  gives 
also  the  power  t.O  support  armies.  The  two  words  are 
coupled  together  by  the  copulative  conjunction  ;  and  if 
the  one  poj*er  require  the  agency  of  State  authority  for 
its  execution,  b-f  every  sound  canon  of  construction,  the 
other  power  must  equally  require  such  agency.  I  go  fur- 
ther: All  tfle  grants,  of  power  in  the  8th  section  of  the 
1st  article  of  the^eonstitution,  (seventeen  that  are  specific, 
and  one  general  in  its  terms.)  are  one  continuous  sen- 
tence, each  clause  being  expressed  in  phraseology  of  kin- 
dred characteiv^s/iul  if. .congress  cannot  directly  execute 
the  powers-enumerated  above,  neither  can  that  body  di- 
rectly execute  the-  other  powers  therein  granted.  Now, 
when  we  reflect  fehatyamong  the  enumerated  grants  found 
in  that  section  a*iu  sentence,  are  the  power  "to  lay  and 
collect  taxes,  dfnties, /m post.-,  and  excises,"  "to  borrow 
money  on  thcjrcredit  &?  the  Confederate  States,"  "to  regu- 
late commerce  with  foreign  nations,"  "to  coin  money," 
"to  declare  war,'"  \c, 'surely  no  one  can,  with  any  plausi-  ^-m 
bility,  contend,  that  tl:  ral  powers  can  only  be  ex- 

ercised through  State  instrumentality. — Prigg  v.  Com- 
monwealth, 16  Pet;  616. 


G54 SUPREME  COURT    

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  Slates. 

The  16th  clause  of  the  section  of  the  Confederate  con- 
stitution which  I  am  considering,  contemplates  that  the 
militia,  which  constitutes  the  material  out  of  which  ar- 
mies are  to  be  raised,  may  be  kept  in  a  state  of  organiza- 
tion and  discipline;  and,  inasmuch  as  invasions  or  insur- 
rections may  be  suddenly  precipitated  upon  us,  or  the 
execution  of  the  laws  of  the  Confederate  States  may  be 
resisted  in  force,  so.  as  to  require  prompt  and  vigorous 
measures  for  the  defense  of  the  country  and  the  welfare 
of  society,  congress  is  also  empowered,  by  the  15th  clause, 
"to  provide  for  calling  forth  the  militia."  This  is  a  sep- 
arate clause,  distinct  from  the  authority  to  raise  armies, 
and  was  deemed  a  necessary  reserve  to  meet  exigencies, 
in  a  country  which  revolted  at  the  idea  of  large  standing 
armies,  or  splendid  military  establishments  in  times  of 
peace.  The  militia,  for  exigencies;  the  army,  when  war 
has  become  au  established  fact. 

It  being  thus  shown,  as  I  think,  that.congress  is  clothed 
with  power  to  raise  armies  by  direct  means,  without  call- 
ing to  its  aid  State  authority,  it  follows  irresistibly,  that 
congress  is  the  sole  arbiter  of  the  means  ami  machinery 
it  will  adopt  for  executing  this  power';  with  the  well 
known  limitation,  that  the  means  employed  shall  be  both 
necessary  and  proper  for  carrying  into  execution  the 
granted  power;  that  is,  as  I  uuderstand  this  clause,  that 
both  qualifying  words  shall  have  operation  and  effect  : 
necessary  to  the  full  enjoyment  of  the  right;  and  proper — 
homogeneous  and  harmonious  with  our'compound  system 
of  government.  No  matter  how  necessary  the  proposed 
means  may  appear,  still,  if  it  antagonize  any  of  the  re- 
served rights  of  the  States  or  of  the  people,  or  militate 
against  any  of  the  principles  which  underlie  our  liberties, 
then  it  is  not  proper;  and,  on  the  oraer  liand,  if  the 
means  proposed  be  in  harmony  with  every  principle  of 
our  institutions,  and  be  not  necessary  to  the  full  enjoy- 
ment of  some  power  granted  to  the  Confederate  govern- 
ment, the  employment  of  such  means  by  that  government 
would  be  a  sheer  usurpation.  When  I  speak  of  incidents 
to  the  grants  of  power  to  the  Confederate  government,  I 


OF  ALABAMA.        *.  ..■      ,,         655 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


mean  express  grants;  for  there  should  be  no  incidents  to 
incidental  powers. — See  Federalist,  No.  S3. 

The  magnitude  of  the  war  that  is  being  waged  against 
us,  renders  it  necessary  that  the  government  pot  forth 
its  greatest,  strength  for  the  protection  of  our  liberty  and 
our  property.  This,  I  am  satisfied,  could  not  be  accom- 
plished by  any  means  .short  of  compulsory  enrollment; 
and  hence  I  hold,  that  the  conscription  acts  are  constitu- 
tional. 

Various  officers,  agencies,  rules  and  regulations,  are 
necessary  and  proper  instrumentalities  in  carrying  into 
effect  the  expressly  delegated  power  '•  to  raise  armies." 
Hence,  these  means  are  also  constitutional  ;  that  is,  they 
are  necessary,  and  ore  not  incompatible  with  the  reserved 
rights  of  the  States,  or  of  the  people.  Many  of  these 
agencies,  trusts  and  duties,  require  professional  skill  and 
knowledge,  Wuich  can  not  be  looked  for  in  persons  who 
have  not  had  the  advantages  of  military  training  and 
experience;  and  it  was  very  natural  that  the  government 
of  the  Confederate  States  should  take  to  itself,  and  lo 
officers  of  its  own  appointment,  the  determination  of 
questions  requiring  such  professional  skill. 

We  have  two  acts  of  congress  for  the  conscription  of 
the  citizens  ;  one  approved  April  16th,  1862,  (Statutes  at 
Large,  first  session  of  first  Congress,  p.  29  ;)  the  other 
approved  Sept.  27,  18G2,  (Stat,  at  Large,  second  session 
of  first  Congress,  p.  61.)  Each  of  these  statutes  author- 
izes the  president  to  call  out,  and  place  in  the  army,  all 
White  men  who  are  residents,  between  the  ages  specified, 
"who  are  not  legally  exempted  from  military  service." 
Neither  of  them  defines  what  residents,  or  classes  of  resi- 
dents, are  exempted  from  such  service;  but  both  statutes 
leave  that  subjecl  to  be  disposed  of  by  after  legislation. 
Hence,  every  resident  white  man,  within  the  specified 
ages,  i.--  liable  to  be  called  into  the  military  service  of  the 
Confederate  Mates,  an  less  it  can  be  shown  that  he  com 
within  the  provisions  of  I  tnption   Btatutes.     \\ 

have  shown    above,  that    m>   person    is    naturally  exempt 
from  taking  up  arms  in   <i  »f  his   country  ;  and  it 


656  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

follows,  that  the  o»u$  is  on  him  who  claims  exemption, 
to  establish  his  right  to  it. 

Imbecility,  or  disability,  either  mental  or  physical,  is. 
per  sr„  no  legal  exemption  from  military  service  in  the 
army  of  the  Confederate  States.  This  results  from  the 
fact  that  exemption  is  a  favor  granted, — not  a  right  eon- 
ceded  ;  and  congress  has  no  where  said  that  mental  or 
physical  imbecility  is  a  valid  excuse  for  the  non-perlorm- 
ance  of  military  service.  In  granting  this  boon,  con. 
gress  had  power  to  prescribe  terms  and  conditions  on 
which  it  could  be  claimed  ;  and  it  did  so. 

The  language  of  the  acls  of  congress,  defining  exemp- 
tions on  account  of  bodily  or  mental  incapacity,  is  as 
follows  :  "  That  all  persons  who  shall  be  held  to  be  unfit 
for  military  services,  under  rules  to  be  prescribed  by  the 
secretary  of  war,  shall  be,  and  are  hereby,  exempted  from 
military  service  in  the  armies  of  the  Confederate  States." 
Act  approved  April  21,  1862,  C.  S.  Stat,  at  Large,  1st 
session  of  1st  Congress,  p.  51.  The  language  of  the  act 
approved  Oct.  11th,  1862,  is  as  follows:  "That  all  per- 
sons who  shall  be  held  unfit  for  military  service  in  the 
field,  by  reason  of  bodily  or  mental  incapacity  or  imbe- 
cility, under  rules  to  be  prescribed  by  the  secretary  of 
war,  are  hereby  exempted  from  military  service  in  the 
armies  of  the  Confederate  States." — Stat,  at  Large,  2nd 
session,  p.  77. 

I  have  thus  quoted  every  word  and  syllable  found  in 
the  acts  of  congress,  which  conferthe  right  of  exemption 
from  military  serviee,  on  account  of  mental  or  physical 
incapacity.  It  will  be  seen  that  neither  mental  nor  bodily 
disease  is,  per  se,  a  ground  of  exemption. 

By  act  of  congress,  approved  Oct.  11th,  1862,  (Stat,  at 
Large,  2d  session,  p.  75,)  it  is  provided,  "that  there  shall 
be  established  in  each  county,  parish  or  district,  and  in 
any  city  in  a  county,  parish  or  district,  in  the  several 
States,  a  place  of  rendezvous  for  the  persons  in  said 
county,  district,  parish  or  city,  enrolled  for  military  duty 
in  the  field,  who  shall  be  there  examined  by  one  or  more 
surgeons,  to    be    employed    by    the   government,    to    be 


OF  ALABAMA.  657 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

assigned  to  that  duty  by  the  president,  on  a  day  of  which 
ten  days  notice  shall  be  given  by  the  surgeon,  and  from 
day  to  day  next  thereafter,  until  all  who  shall  be  in 
attendance  for  the  purpose  of  examination,  shall  have 
been  examined;  and  the  decision  of  said  surgeons,  under 
regulations  to  be  established  by  the  secretary  of  war,  as 
to  the  physical  and  mental  capacity  of  any  such  person 
for  military  duty  in  the  field,  shall  be  final."  Section  2. 
"There  shall  be  assigned  to  each  congressional  district  in 
the  several  States,  three  surgeons,  who  shall  constitute  a 
board  of  examination  in  such  districts,  for  the  purpose 
specified  in  the  foregoing  section,  any  one  or  more  of 
whom  may  act  at  any  place  of  rendezvous  in  said  dis- 
trict." 

Provision  had  been  made  for  the  enrollment  of  con- 
scripts, under  other  acts  of  congress. 

Under  the  acts  of  congress  from  which  I  have  given 
extracts  above,  the  secretary  of  war  has  made  and  pub- 
lished the  following  rules: 

'•Questions  of  bodily  and  mental  incapacity  will  be 
decided  by  surgeons  employed  for  the  purpose,  by  virtue 
of  the  aet  of  congress  approved  on  the  11th  of  October, 
1862.  V 

"  Persons  deemed  incapable  of  bearing  arms,  shall  be 
reported  by  the  examining  surgeon  to  the  board  of  exam- 
ination, who  shall  determine  the  questions  of  exemption, 
and  grunt  certificates  thereof.  *  *  *  So  soon  as  the 
examining  board  shall  be  organized  in  any  congressional 
district,  and  shall  enter  upon  the  discharge  of  their  du- 
ties, no  other  mode  of  examination'  for  [persons  in  that 
district  will  be  pursued;  and  the  decision  of  the  examin- 
ing board  will  be  deemed  final." 

"Applications  for  exemption  must,  in  all  eases,  be 
made  to  the  enrolling  officer,  from  whose  decision  an 
appeal   may  be  taken  to  the  commandant  ol  ;pts. 

The  department  will  not  con  aid  >n,  until 

it  has  beeu  referred  by  the  Utter  officer." 

In  the  light  of  these  statutes  and  these  rules,  I  hold, 
that  the  petitions    brought  to    view  in  the  j 


658 SUPREME  COURT 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

show  no  ground  which  the  judge  of  probate  was  author- 
ized to  inquire  into  or  try.  They  do  not  aver  that  the 
petitioners  had  been  "held  unfit  for  military  service  in 
the  field,  by  reason  of  bodily  or  mental  incapacity  or 
imbecility,"  under  rules  prescribed  by  the  secretary  of 
war.  They  set  forth  the  grounds  on  which  they  severally 
claim  the  right  to  be  enlarged  ;  and  when  those  grounds 
are  examined,  they  are  found  wholly  insufficient.  They 
are  as  unimportant  as  the  assertion  of  any  other  indiffer- 
ent fact;  such,  for  instance,  as  that  the  petitioner  was  a 
white  man,  was  the  head  of  a  family,  &c.  A  petition, 
claiming  enlargement  on  a  ground  so  utterly  frivolous  as 
those  supposed,  could  scarcely  command  the  serious  con- 
sideration of  any  court. 

I  have  shown  above,  that  congress,  in  granting  the 
privilege  of  exemption  on  the  ground  of  mental  or  physi- 
cal unsoundness,  has  reserved  to  the  secretary  of  war, 
and  to  surgeons  for  whose  appointment  it  makes  provis- 
ion, the  right  of  passing  upon-  the  question  of  unsound- 
ness. In  other  words,  the  statute  exempts  only  such 
persons  as  are  decided  by  the  surgeon,  or  board  of  examin- 
ation appointed  by  the  president,  to  be  incapable  of 
bearing  arms.  This,  I  think,  was  very  natural  and  neces- 
sary. It  brings  the  adjudication  of  this  very  difficult 
problem  within  the  control  of  experts,  and  saves  the  pub- 
lic service  from  delay  and  detriment,  which,  in  some 
instances,  might  result  from  ignorance  or  favoritism. 
It  avoids  inequality,  by  providing  a  stationary  and  uni- 
form board  of  examination,  whose  decisions,  we  must 
presume,  would  be  much  more  likely  to  be  right,  than 
the  opinions  of  any  and  every  practicing  physician  who 
might  be  called  to  testify.  Be  this,  however,  as  it  may, 
the  acts  of  congress  give  to  the  surgeon,  and  to  the  board 
of  examination,  the  exclusive  right  to  pass  on  the  ques- 
tion of  mental  or  bodily  incapacity  ;  and  that  takes  from 
State  courts  all  right  to  inquire  into  the  question. — See 
Federalist,  No.  82  ;  1  Kent's  Com.  390,  marg. ;  Houston 
v.  Moore,  5  Wheat.  1 ;  Sturgis  v.  Crowinshield,  4  Wheat. 
193;  Prigg  v.   Commonwealth,   16  Pet.  625 ;  Moore  y. 


OF  ALABAMA.  659 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


Houston,  3  S.  &  K.  179;  Blanchardv.  Kussell,  13  Mass. 
16;  Livingston  v.  Van  Ingen,  9  Johns.  507  ;  2  Story's 
Com.  §  1755-6,  and  note  2;  Martin  v.  Hunter,  1  Wheat: 
304  ;  Ex  parte  Gist,  26  Ala.  156. 

I  take  a  further  step.  The  acts  of  congress  cited  in 
this  opinion,  and  the  instructions  framed  under  their 
authority,  commit  the  determination  of  the  various  ques- 
tions raised  by  the  petitions  for  habeas  coiyus,  to  certain 
officers  and  agents  of  the  Confederate  government,  and 
declare,  in  terms,  that  the  decision  thus  pronounced 
shall  be  final.  Under  these  circumstances,  the  State  leg- 
islatures have  no  authority  to  create  a  new  forum,  or 
clothe  it  with  power  to  settle  or  retry  the  question  of 
.mental  or  physical  capacity  for  military  service. — See 
Wayman  v.  Southard,  10  Wheat.  1;  U.  S.  Bank  v.  Hal- 
stead,  ib.  51.  It  would  be  passing  strange,  if  State  courts, 
in  the  absence  of  legislation/  could  perform  functions 
which  the  legislature  can  not  confer  upon  them. 

Whether  Confederate  courts  have,  or  can  exercise,  any 
greater  powers  over  the  question  under  discussion,  is  a 
subject  not  before  me,  and  I  will  not  decide  it. 

It  may  be  contended,  however,  that  while  ,the  forego- 
ing argument  may  prove  that  State  courts  have  no  au- 
thority to  discharge  persons  from  military  service,  on 
account  of  physical  disability,  not  show7i  to  exist  in  the 
manner  pointed  out  by  the  acts  of  congress,  and  the  rules  is- 
sued by  the  secretary  of  war  ;  still,  I  have  failed  to  estab- 
lish the  proposition,  that  State  courts  may  not,  in  such 
case,  issue  the  writ  of  habeas  corpus,  and  inquire  of  the 
legality  of  the  imprisonment. 

To  this  I  answer,  first,  that  the  petitioners  for  habeas 
corpus,  by  placing  their  claim  to  enlargement  on  a  fact 
that  is,  in  law,  utterly  indifferent  and  frivolous,  fail  to 
sfyow  on  the  face  of  their  petitions  that  they  are  illegally 
restrained  of  their  liberty.  The  petitions  do  not  contain 
the  averment,  common  in  such  cases,  that  the  petitioners 
are  illegally  restrained  of  their  liberty.  The  averment  is, 
that  they  are  "prisoners  restrained  of  their  liberty;" 
and  they  then  set  forth  the  ground,  to-wit,  physical  un- 


660 SUPREME  COURT    

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 
soundness,  on  account  of  which,  they  aver  and  say,  they 
are  "advised  by  counsel  and  believe  their  imprisonment 
To  be  illegal."  Hence,  there  is  a  want  of  jurisdiction,  in 
this,  that  the  petitioners  show  themselves  rightfully  re- 
strained, yet  ask  the  writ  of  habeas  corpus,  that  the  legal- 
ity of  that  restraint  may  be  inquired  into. 

But,  secondly:  Jurisdiction  is  the  right  to  hear  and  deter- 
mine, a  cause. — United  States  v.  Arredendo,  6  Pet.  691, 
709  ;  Sheldon  v.  Newton,  3  Ohio  State  Rep.  490,  499. 
Jurisdiction,  says  Bouvier  in  his  Law  Dictionary,  is  "a 
power  constitutionally  conferred  upon  a  judge  or  magis- 
trate, to  take  cognizance  of  and  decide  causes  according 
to  law,  and  to  carry  his  sentence  into  execution."  In  the 
case  of  Rhode  Island  v.  Massachusetts,  (12  Pet.  657,  718,)- 
Mr.  Justice  Baldwin  said,  "Jurisdiction  is  the  power  to 
hear,  and  determine  the  subject-matter  in  controversy 
between  parties  to  a  suit ;  to  adjudicate  or  exercise  any 
judicial  power  over  them."  Now,  it  seems  to  me  to  be 
clear  beyond  all  question,  that  the  power,  or  rather  the 
absence  of  power,  in  the  probsite  judge,  over  the  subject 
of  complaint  brought  to  view  !»y  the  several  petitions  for 
habeas  corpus,  demonstrates  an  entire  want  of  jurisdiction 
in  that  officer,  under  each  and  all  ihe  definitions  above 
set  forth.  The  gravamen  of  each  petition  is,  that  the  pe- 
titioner is  physically  unable  to  perform  military  service. 
Jurisdiction  is  the  right  to  inquire  into  the  alleged  fact 
of  such  physical  disability.  The  probate  judge  lias  no 
authority  to  inquire  into,  or  try  that  question;  there- 
fore, the  probate  judge  has  no  jurisdiction  of  the  causes 
made  by  the  several  petitions. 

If  it  be  contended  further,  that  the  judge  of  probate 
had  jurisdiction,  because  he  had  authority  to  decide,  as 
a  judge,  that  he  would  not  and  could  not  enter  upon  the 
trial  4f  the  question  of  physical  disability  ;  the  argument 
is  just -as  strong,  and  no  stronger  than  would  be  the 
assertion,  that  every  court  which  dismisses  or  repudiates 
a  cauge  for  want  of  jurisdiction,  thereby  affirms  its  juris- 
diction, and  disproves  the  truth  of  its  own  solemn  sen- 
tence.    It  is  rarely  the  case  that  any   court  attains  the 


OF  ALABAMA.  661 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

conclusion  it  has  not  jurisdiction  of  a  given  subject,  with- 
out construing  some  statute,  or  announcing  some  legal 
or  constitutional  principle,  which  deprives  it  ot  jurisdic- 
tion. In  the  great  case  of  Dred  Scott  v.  Sand  ford, 
(19  How.  393,)  the  supreme  court  of  the  United  States 
decided,  that  neither  itself  nor  the  circuit  court  had  juris- 
diction of  the  case  made  by  the  plaintiff;  still  that  courfe 
enunciated  some  of  the  most  important  principles  ever  , 
decided  on  this  continent;  and  was  compelled  to  decide 
many  of  them,  to  reach  the  conclusion  that  it  had  not 
jurisdiction  of  the  cas 

For  these    reasons,  1   hold,  that  the  judge   of  probate 
las  no  jurisdiction    of   the    cases  made   by  the   several 
etitions. 

In  an  opinion,  recently  delivered  by  the  chief-justice  of 
the  supreme  court  of  North  Carolina,  I  find  that  lie  con- 
curs in  denying  to  the  courts  power  to  retry  the  question 
of  mental  or  physical  incapacity. 

When,  on  a  former  day,  I  delivered  an  opinion  in  these 
cases,  I  limited  the  operation  of  my  remarks  to  cases 
which  are  in  principle  like  the  present,  because  there 
had  not  then  been  a  conference  between  all  the  members 
of  the  court;  and  as  I  felt  inclined  to  differ  from  the 
chief-justice,  on  some propositions  contained  in  his  opin- 
ion, I  purposely  withheld  my  views  until  a  full  consulta- 
tion with  our  absent  brother  could  be  had.  That  consul- 
tation has  now  been  had;  and  although  I  am  aware  that, 
in  what  I  am  about  to  say,  I  go  beyond  the  wants  of  the 
present  case,  I  feel  it  a  duty  we  owe  to  the  public,  that  I 
make  known  certain  other  conclusions  at  which  we  have 
arrived. 

A  majority    of  the  court,  holds,  that  the  S  nrts 

have  jurisdiction  of  the  writ  of  habeas  corpust  in  all  cases 
which  come  within  either  <>i'  the  following  classes :  First) 
where  the  petitioner  claims  that  the  c  mseript  laws  do 
not  reach  him,  or  authorize  his  enrollment  as  a  conscript, 
because  he  is  under  or  over  age,  uot  a  white  man,  or  not 
a  resident  of  the  Confederate  ■/>(/,  where  tho 


662 SUPREME  COURT 

Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 


party  claims  that  he  stands  absolutely  and  uncondition- 
ally exempt  from  military  service,  because  he  belongs  to 
some  sect  or  class,  which  the  act  of  congress  declares 
operates  an  exemption  ;  such,  for  example,  as  Friends 
who  have  complied  with  the  law,  and  officers,  judicial 
and  executive,  of  the  State  and  Confederate  governments. 
'Questions  may  arise  under  the  regulations  which  permit 
the  putting  in  of  substitutes,  over  which  I  would  not 
hesitate  to  exercise  jurisdiction  ;  but,  for  reasons  satis- 
factory to  myself,  I  prefer  not  to  define,  at  present,  the 
extent  to  which  I  would  exercise  such  jurisdiction. 

Wherever,  as  in  the  present  case,  the  privilege  of  ex- 
emption is  granted  on  conditions,  the  adjudication  of 
which  is  expressly  reserved  to  certain  officers  named  or 
provided  for;  or,  where  the  acts  of  congress  declare  that 
the  exemption  shall  cease  and  determine  on  the  happening 
of  certain  events,  to  be  judged  of  and  determined  by  the  sec- 
retary  of  war,  or  other  designated  officer,  I  hold,  that  such 
condition  is  a  legitimate  limitation  on  the  boon  of  exemp- 
tion, which  congress  had  the  clear  right  to  impose*;  and 
that  State  courts  have  no  authority  to  supervise  the  ac- 
tion of  such  officers,  thus  provided  for  and  exercised,  or 
to  retry  any  question  thus  exclusivelj'  conferred  on  an 
officer  of  the  Confederate  government.  To  entertain 
jurisdiction  in  such  cases,  would  lead  to  the  most  embar- 
rassing and  disastrous  collisions  between  the  authorities 
of  the  two  governments. 

I  am  of  that  school  who  believe,  that  the  Confederate 
government  is  one  of  limited  and  defined  powers,  and 
that  great  care  should  at  all  times  be  exercised,  to  pre- 
vent it  from  enlarging  its  powers  by  construction.  Our 
compound  system  of  government,  perhaps,  exposes  the 
States  to  encroachments  upon  their  reserved  rights,  more 
than  any  other  form  of  constitutional  government  could 
do.  This  grows  in  part  out  of  the  fact,  that,  within  the 
sphere  of  their  operation,  the  constitution  of  the  Con- 
federate States,  and  the  acts  of  congress  passed  pursuant 
thereto,  are  the  supreme  law  of  the  land.  The  constitu- 
tion, in  addition  to  its  enabling  clauses,  which  confer 


OF  ALABAMA.  663 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 
powers  on  the  government,  contains  several  restraints 
upon  State  authority.  Under  these  clauses,  an  appellate 
jurisdiction' was  built  up  in  the  supreme  court  of  the 
United  States,  which,  in  my  opinion,  was,  in  some  in- 
stances, carried  to  an  extent  of  doubtful  propriety.  I 
will  not  discuss  this  question  here,  further  than  to  say, 
that  I'  think  many  of  the  imputed  errors  which  crept  into 
the  old  .system  grew  out  of  the  mistaken  theory  of  the 
oneness  of  our  distinct  governments,  and  the  too  great 
subordination  of  tho  State  to  the  Federal  government. 
One  source  of  alleged  encroachment  of  Federal  upon 
State  authority  has  been  removed,  by  a  wise  amendment 
of  the  second  section  of  the  third  article  of  the  constitu- 
tion ;  and  other  amendments  have  also  shorn  our  young 
government  of  much  of  the  power  which  the  old  one 
wielded  to  our  detriment.  I  hope  that,  when  the  Con- 
federate judiciary  shall  be  fully  organized,  the  heresies 
which  aided  in  overthrowing  the  old  Union,  will  not  be 
allowed  to  enter  the  sanctuaries  of  the  new. 

I  do  not  mean,  in  what  I  have  said,  to  question  the 
distinguished  ability  which  has,  at  all  times,  marked  the 
long  and  brilliant  history  of  the  Federal  supreme  court. 
My  precise  meaning  is,  that,  in  my  judgment,  false  views 
of  the  powers  of  the  Federal  government,  and  especially 
of  the  relations  which  the  States  sustain  to  that  govern- 
ment, found  utterance  at  au  early  day;  and  that  the 
court,  in  later  years,  although  it  burst  some  of  the  fetters 
by  which  early  precedent  had  sought  to  confine  it,  left 
many  of  those  errors  unreversed.  Let  us  avail  ourselves 
of  the  much  good  bequeathed  to  us  by  the  many  able 
minds  which  have  adorned  that  bench  at  every  period  of 
its  history;  but  let  us  avoid  the  errors  which  time  and 
experience  have  made  manifest. 

I  have  said  that  an  early  error  crept  into  our  system, 
as  to  the  relation  which  the  Federal  and  State  govern- 
ments sustain  to  each  other.  In  my  opinion,  we  should 
struggle,  from  the  very  threshold  of  our  existence,  to 
keep  the  powers  and  functious  of  the  two  governments 
as  distinct  as  possible.     The  dividing  line  of  jurisdiction, 


661  SUPREME  COURT 


Ex  parte  Hill,  in  re  Willis  et  al.  v.  Confederate  States. 

where  no  territorial  boundary  marks  it,  must,  in  the  na- 
ture of  things,  be  sometimes  difficult  of  ascertainment. 
Still,  the  line  exists,  and,  when  discovered,  must  be 
respected.  It  is  history,  now  made  sadly  impressive  by 
the  ocean  of  noble  blood  which  it  has  caused  to  flow, 
that  by  transgressions  of  this  boundary  line,  sometimes 
by  the  Federal,  and  sometimes  by  State  governments, 
our  once  prosperous  and  happy  country  is  now  the  thea- 
tre of  a  war  of  almost  unprecedented  malignity  and 
atrocity.  That  enlightened  jurist  and  venerated  patriot, 
Chief- Justice  Taney,  speaking  for  the  court,  felt  and  ex- 
pressed the  necessity  of  preventing  encroachments  by 
one  jurisdiction  upon  the  other  ;  bat  his  counsels  came 
when  fanaticism  had  well  nigh  matured  its  parricidal 
plot,  the  culmination  of  which  is  now  converting  portions 
of  our  rich  domain  into  a  desolation. — See  Ableman  v. 
Booth,  21  How.  506;  Dred  Scott  v.  Sandford,  19  ib.  393. 
The  jurisdictional  area  of  each  government,  should  be 
kept  distinct — restraining  the  Confederate  government 
within  the  boundaries  of  its  delegated  authority,  and  not 
allowing  the  State  governments  to  trespass  on  Confede- 
rate jurisdiction.  The  powers  conferred  on  that  govern- 
ment by  the  Confederate  constitution,  the  laws  enacted 
under  its  authority,  and  treaties  made  pursuant  thereto, 
are  the  supreme  law  of  the  land.  Let  us  respect  and 
obej'  them  as  such.  Let  us  not  weaken  or  destroy  our 
Confederate  power,  by  embarrassing  that  government  in 
the  manly  exercise  of  those  functions  with  which  the 
States  themselves  have  clothed  it.  This  will  neither 
destroy  nor  impair  the  sovereignty  of  the  several  States. 
They  are  not  despotisms.  For  certain  general  purposes, 
they  have  conferred  on  the  Confederate  government  cer- 
tain attributes  of  their  sovereignty  ;  but  they  retain  the 
others.  They  have  thus  become  constitutional,  instead 
of  absolute  sovereignties.  This  no  more  destroys  State 
sovereignty,  than  does  the  surrender  of  certain  attributes 
of  natural  liberty  destroy  civil  liberty.  In  upholding 
and  maintaining  each  government  in  the  exercise  of  its 
constitutional  authority,   each  will  necessarily  be  kept 


OF  ALABAMA.  665 


Ex  parte  Stringer. 


within  the  appointed  orbit  of  its  powers.  This,  I  hum- 
bly conceive,  would  effectually  prevent  all  collision  of 
Jurisdictions.  It  need  not,  and  would  not,  interdict  the 
comities  and  kind  offices  which  belong  to  good  neighbor- 
hood. These  should  be  cultivated  and  strengthened,  as 
the  life-blood  of  our  confederate  existence. 


R.  W.  Walker,  J.,  not  sitting. 


I 


Ex  Part*  STRINGER. 

[application  for  habkas  cop.pi;b.J 

I..  Conscientious  scruples  against  bearing  anus,  as  ground  of  exemption 
i   military  service. — A  person  Who  "conscientiously  scruples  to 

bear  arms,"  may  claim  exemption  from  military  duty,  under  the 
provisions  of  the  State  constitution,  (art.  iv,  militia,  \  2,)  upon  pay- 
ment (if  an  equivalent  for  personal  service;  yet  he  is  not  entitled, 
on  that  account,  to  exemption  from  military  service  in  the  armies 
of  the  Confederate  States,  unless  he  belongs  to  one  of  the  religious 
denominations  specially  exempted  by  the  acts  of  congress. 


Application  by  Levi  M.  Stringer,  for  the  writ  of  habeas 
corpus,  to  obtain  his  discharge  from  the  custody  of  Major 
\V.  T.  Walthall,  commandant  of  the  camp  of  instruction 
near  Talladega.  The  petitioner  alleged,  that  he  was  held 
in  custody  at  the  said  camp  of  instruction  as  a  conscript; 
that  he  was  a  regular  member  of  a  "Christian  church", 
and  had  conscientious  scruples  against  bearing  arms  ;  that 
he  was  therefore  exempt  from  military  service,  under  that 
provision  of  the  State  constitution  which  declares,  that 
"any  person  who  conscientiously  scruples  to  bear  arms, 
shall  not  be  compelled  to  do  so,  but  shall  pay  an  equiva- 
lent for  personal  service,"  and  claimed  the  right  to  pay 
an  equivalent  for  personal  service,  as  therein  provided; 
that  he  had  applied  to  the  Hon.  John  T.  IIeflin,  one  of 
43 


666 SUPREME  COURT 

Ex  parte  Stringer. 


the  circuit  judges  of  the  State,  for  the  writ  of  habeas  cor- 
pus, churning  his  right  of  exemption  from  military  service 
on  the  ground  above  stated  ;  and  that  said  judge,  on  the 
hearing  of  the  writ,  had  refused  to  discharge  him. 

L.  E.  Parsons,  for  the  petitioner. 

STONE,  J.— [March  4,  1863.]— The  acts  of  congress, 
known  as  the  "conscript  laws,"  are  constitutional — Ex 
parte  Hill,  in  re  Willis  et  at,  at  the  present  term.  Those 
acts  authorize  the  enrollment  and  cotscription  of  citizens 
within  the  conscript  age;  and  this,  without  invocation  of 
State  authority.  The  power  of  the  Confederate  govern- 
ment to  conscribe  the  citizen,  is  derived  from  the  Con- 
federate constitution,  and  is  not  at  all  dependent  on  the 
constitution  of  the  State  of  Alabama.  The  petitioner 
does  not  show  a  case  which  entitles  him  to  exemption 
from  military  service  under  the  acts  of  congress.  Con- 
scientious scruples  against  bearing  arms,  unless  the  party 
entertaining  them  belongs  to  one  of  the  religious  sects 
mentioned  in  the  statute,  presents  to  the  courts  of  the 
country  no  legal  ground  for  declaring  the  petitioner  ex- 
empt from  military  duty. 

As  the  opinion  of  the  entire  court  is  not  yet  announced, 
nor  indeed  formed,  on  the  broad  question  of  jurisdiction 
of  State  courts  in  cases  like  the  present; — and  as  we  feel 
no  hesitation  in  refusing  the  present  application  on  the 
merits,  we  place  our  refusal  on  the  ground  stated  above. 

The  prayer  of  the  petitioner  is  denied. 

li.  W.  "Walker,  J.,  not  sitting. 


OF  ALAJ3AMA.  667 

Ex  parte  Hill,  in  re  Armistcad  v.  Confederate  States. 


Ex  Parte  HILL,   in  Re  ARMISTEAD  vs.  CONFED- 
ERATE STATES. 

[application  for  prohibition  TO  PKOBATE  JUDGE.  J 

Ex  Parte  DUDLEY. 

[APPLICATION  FOR  MANDAMUS  IN   MATTER  OF  HABEAS    CORPUS.] 

1.  Jurisdiction  of  State  courts  (o  discharge  enrolled  conscript  from  cus- 
tody of  Confederate  States  officer. — On  petition  for  habeas  corpus,  by 
a  person  who,  being  liable  to  military  service  under  the  act  of  con 
as  approved  April  llith.  1862,  commonly  called  the  "  first  con- 
script law,"  procured  and  placed  in  bis  stead  a  substitute,  and' was 
thereupon  discharged  ;  but,  after  the  passage  of  the  "second  con- 
script law,"  approved  September  27th,  18(12,  was  again  arrested, 
by  the  enrolling  officer,  on  the  ground  that  his  discharge  had  be- 
come inoperative,  because,  his  substitute  was  personally  liable  to 
service  under  the  latter  law,— the  State  court  or  judge  to  whom 
the  application  for  the  writ  is  made,  has  jurisdiction  to  determine 
the  question  of  fact,  whether  the  petitioner  placed  in  his  stead  a 
substitute,  and  was  thereupon  discharged  ;  and  also  the  question 
of  law,  whether  such  discharge  exempted  the  petitioner  from  lia- 
bility to  service  under  the  latter  law,  his  substitute  being  within  the 
conscript  age  as  therein  specified.  (A.  J.  Walker,  C.  J  ..dissenting.) 

2.  Same. — The  commandant  of  conscripts,  _at  one  of  the  camps  of 
instruction,  having  vacated,  on  the  ground  of  fraud,  a  discharge 
procured  by  a  person  who,  being  liable  to  military  service  under 
the  "conscript  laws"  of  congress,  had  furnished  a  substitute  in 
his  stead;  mid  the  decision  of  the  commandant  having  been  ap- 
proved by  the  secretary  of  war, — a  State  court  or  judge  has  no  ju- 
risdiction, on  habeas  corpus  or  otherwise,  to  revise  or  control  the 
action  and  decision  of  the  commandant,  at  the  instance  of  the 
pei  son  whose  discharge  is  thus  vacated,  on  the  ground  that  ex-partc 
affidavits  were  received  against  him  on  the  trial,  or  that  be  was 
not  notified  of  the  time  and  place  of  taking  testimony,  or  that  he 
was  not  allowed  an  opportunity  to  cross-examine  witnesses.  (R. 
W.  Walker,.!.,  dissenting.) 

3.  Liability  of  principal  to  military  service  under  "second  conscript  law," 
having  furnished  substitute  under  first. — The  Oth  section  of  the  "first 
conscript  law"  of  congress  declaring,  that  persons  not  liable  to 
military  service  "may  be  received  as  substitutes  for  those  who  are, 


668  SUPREME  COURT 


a&&  !&^  ti 


Ex  parte  Hill,  in  re.  Armistead  v.  Confederate  States. 

under  such  regulations  as  may  be  prescribed  by  the  secretary  of 
war";  and  the  general  orders  (No.  .17)  published  by  the  secretary 
of  war  on  the  19th  May,  18(32,  providing,  in  reference  to  exemp- 
tions procured  by  furnishing  substitutes,  that  "such  exemption  is 
valid  only  so  long  as  the  said  substitute  is  legally  exempt,"— a  per- 
son who  was  liable  to  conscription  under  said  law,  and  who,  after 
the  publication  of  said  general  orders,  placed  in  his  stead  a  sub- 
stitute, who  was  between  the  aires  of  thirty-five  and  forty  years, 
and  thereupon  obtained  his  discharge,  became  again  liable  to  con- 
scription, on  the  passage  of  the  "second  conscript  law,"  and  the 
president's  call  for  men  between  the  ages  of  thirty-five  and  forty 
years  ;  and  the  same  principle  applies  to  persons  who  furnished 
substitutes  after  the  publication  of  the  general  order  (No.  64)  dated 
September  8,  18G2,  which  declares,  that  "  a  substitute  becom- 
ing liable  to  conscription  renders  his  principal  also  liable."  (Per 
tot  cur.) 

These  two  cases,  though  decided  together,  were  argued 
and  submitted  at  different  times.  The  first  was  an  appli- 
cation by  L.  II.  Hill,  an  officer  of  the  provisional  army  of 
the  Confederate  States,  and  the  enrolling  officer  of  the 
district  embracing  the  county  of  Montgomery,  for  a  writ 
of  prohibition  to  the  probate  judge  of  said  county,  enjoin- 
in;,''  and  restraining  him  from  further  proceedings  in  the 
matter  of  a  petition  for  habeas  corpus,  sued  out  before  him 
by  YV.  B.  Armistead,  who  sought  thereby  to  procure  his 
release  from  the  custody  of  said  enrolling  officer,  on  the 
ground  that  lie  had  obtained  a  discharge  from  military 
service  by  placing  a  substitute  in  his  stead.  This  appli- 
cation was  made  on  a  regular  motion  day  of  the  January 
term,  1863,  and  was  submitted  at  the  same  time  with  the 
last  preceding  case:  being  argued  at  the  bar  by  P.  T. 
fcJAYRE,  on  behalf  of  the  Confederate  States,  and  by  S.  F. 
Rice  and  J  no.  A.  Elmore,  with  whom  was   A.  13.  Clith- 

\  if! 

SHALL,  for  the  petitioner  Arrnistead. 

The  other  case  was  an  application  by. Charles  II.  Dud- 
ley, for  a  mandamus,  or  other  remedial  writ,  directed  to 
the  Hon.  N".  W.  Cocke,  the  chancellor  of  the  southern 
chancery  division,  by  which  the  petitioner  sought  to  ob- 
tain a  full  hearing  on  habeas  corpus  before  said  chancellor, 
and  a  discharge   from  custody  as  a  conscript.     All   the 


OF  ALABAMA.  669 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

material  facts  of  the  ca.se  are   stated   in  the   opinion  of 
Stone,  J. 

The  opinions  were  delivered,  at  different  times,  daring 
June  term,  1 

STONE,  J. — The  precise  line  of  division  which  scpa- 
•ratcs  State  and  Confederate  judicial  authority,  is  not  al- 
ways easy  of  expression,  if  indeed  it  be  easy  of  ascertain- 
ment. Operating,  (within  the  sphere  of  its  appointed 
powers,)  as  each  government  confessedly  does,  upon  the 
same  territorial  area,  and  upon  the  came  persons,  it  re- 
quires, in  some  cases,  the  closest  scrutiny  to  prevent 
encroachment  by  one  power  upon  the  other.  If  either 
government,  in  the  performance  of  its  functions,  by  mis- 
take or  otherwise,  transgress  the  boundary  line  which 
separates  them,  and  trespass  on  the  domain  of  the  other, 
such  conduct  does  not  conclude  the  other  government, 
nor  estop  it  from  asserting  and  enforcing  its  own  rights. 
On  the  other  hand,  if  either  government,  or  its  officers, 
act  within  the  sphere  of  its  powers,  although  such  action 
may  be.  erroneous  and  reversible,  it  is  not,  except  in  cer- 
tain specified  cases,  within  the  power  of  the  other  gov- 
ernment to  control  its  action  thus  performed,  nor  to  cor- 
rect the  errors  that  may  be  committed.  The  distinction 
is  between  a  want  of  authority  over  the  person  or  thing, 
and  ati  erroneous  exercise  of  authority  possessed.  If  the 
subject-matter  be  within  the  legal  cognizance  ot  the  offi- 
cer acting,  no  matter  how  far  that  officer  may  err  in  ad- 
judicating or  applying  the  law  to  such  subject-matter, 
the  redress,  if  any,  musi,  as  a  general  rule,  be  sought  in 
the  courts  of  the  government  whose  officer  has  committed 
the  error.  But,  if  the  officer  exercise  authority  over  a 
subject  or  pei.vm  not  within  his  official  cognizance,  the 
judicial  officers  of  the  other  government  may  give  redress* 
if  the  subject-matter  be  within  tlu3  general  scope  of  their 
jurisdiction. 

The  distinction  attempted  to  be  drawn   above    may  be 
illustrated    by  the  two  "locum    v.   Mayberry, 

(2  Wheat.  1,)  and  McClung  v.   .silliman,   (6  Wheat. 


G70 SUPREME  COURT 

Ex  parte  Hill,  in  re  Armfctead  v.  Confederate  States. 

The  case  of  Slocurn  v.  Mayberry  arose  under  the  11th 
section  of  the  embargo  law,  approved  April  25,  1808, 
(2  U.  S.  Stat,  at  Large,  501,)  which  authorized  the  collec- 
tors of  the  customs  "to  detain  any  vessel  ostensibly 
bound  with  a  cargo  to  some  other  port  of  the  United 
States,  whenever  in  their  opinions  the  intention  is  to  vio- 
late or  evade  any  of  the  provisions  of  the  acts- laying  art 
embargo,  until  the  decision  of  the  president  of  the  United 
States  be  had  thereupon."  Under  this  act,  the  collector 
of  the  port  of  Newport,  Rhode  Island,  had  a  vessel,  with 
its  cargo,  seized  by  Slocum,  the  surveyor  of  the  port; 
and  Mayberry,  the  owner  of  the  cargo,  brought  his  action 
of  replevin  for  the  same  in  the  State  court  of  Rhode 
Island.  The  question  was,  had  the  State  court  jurisdic- 
tion ?  The  supreme  court  of  the  United  States,  Chief- 
Justice  Marshall  delivering  the  opinion,  decided,  that  if 
the  question  had  arisen  on  the  seizure  of  the  vessel,  the 
State  court  would  have  had  no  jurisdiction  ;  but,  inas- 
much as  the  collector  had  no  power  or  authority  to  detain 
the  cargo,  the  act  of  congress  not  making  provision  for 
its  detention,  the  State  court  had  jurisdiction  of  the  case. 

In  the  case  of  McClung  v.  Silliman,  the  attempt  was 
made  to  control,  by  mandamus  from  a  State  court,  the 
official  conduct  of  a  register  of  a  land-office  of  the  United 
States,  in  the  matter  of  a  pre-emption  claim.  The  court 
ruled,  that  the  State  court  had  no  authority  to  direct  or 
govern  the  official  conduct  of  the  register  of  the  United 
States  land-office. 

So,  it  has  been  ruled,  that  if  a  marshal  of  the  United 
States  levy  on  goods  under  process  against  A,  and  B 
claim  that  the  goods  are  his  property,  in  a  suit  by  B 
against  the  marshal,  State  courts  have  jurisdiction  of  the 
question,  whether  the  property  belongs  to  B  or  to  A. — 
Dunn  v.  Vail,  7  Mar.  La.  41G;  Bruen  v.  Ogden,  6  Hals. 
370.  See,  also,  United*  States  v.  Peters,  5  Cranch,  115, 
135  ;  McKim  v.  Voorhies,  7  Cranch,  279;  Diggs  v.  Wol- 
cott,  4  Cranch,  179  ;  Kitteridge  v.  Emerson,  15  N.  II. 
227  ;  McNutt  v.  Bland,  2  How.  U.  S.  9. 

Chancellor  Kent's  statement  of  the  principle .  under 


OF  ALABAMA.     A  671 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


discussion  is  as  follows:  "If  the  officer  of  the  United 
States  who  seizes,  or  the  court  which  awards  the  process 
to  seize,  has  jurisdiction  of  the  subject-matter,  then  the 
inquiry  into  the  validity  of  the  seizure  belongs  exclu- 
sively to  the  Federal  courts.  Bat,' if  there  be  no  juris- 
diction in  the  instance  in  which  it  is  asserted — as  if  a 
marshal  of  the  United  States,  under  an  execution  in  favor 
of  the  United  States  against  A,  should  seize  the  person 
or  property  of  B — then  the  State  courts  have  jurisdiction 
to  protect  the  person  and  the  property  so  illegally  in- 
vaded." 

Springing  out  of  the  principles  settled  in  the  cases  of 
Slocum  v.  Mayberry,  and  McOlung  v.  Silliman,  supra,  I 
think  the  following  propositions  may  be  laid  down  : 

First:  Whenever  an  officer,  under  authority  in  the 
premises  conferred  by  the  government  under  which  he 
is  acting,  is  in  the  performance  of  official  duties  ;  and,  in 
the  performance  of  such  duties,  there  is  expressed,  or 
necessarily  implied,  the  right  to  decide  upon  qualifica- 
tions, or  to  draw  inferences  from  facts,  then  any  error  of 
conclusion,  or  of  judgment,  into  which  he  may  fall,  is 
not  subject-to  revision  or  correction  by  the  officers  of  the 
other  government,  nor  is  the  officer  acting  subject  to  the 
coercive  control  thereof,  unless  the  constitution  or  laws 
give  to  the  officers  of  the  latter  government  such  control 
or  power  of  revision. 

Second:  Whenever  the  question  is—not  whether  the 
officer  correctly  decided  or  acted  in  a  matter  within  the 
scope  of  his  power  and  jurisdiction — hut,  the  inquiry  is, 
has  he  erroneously  applied  his  authority  or  jurisdiction 
to  a  person  or  subject-matter  not  within  its  scope,  then 
the  courts  of  the  other  government,  if  the  subject  and 
person  be  of  a  class  which  comes  within  their  jurisdic- 
tion, may  inquire  id' and  determine  the  question  of  such 
erroneous  application  of  authority,  unless  the  law,  in  its 
terms,  inhibit  such  inquiry. 

There  is  scarcely  any  human  action  that  is  so  entirely 
independent  of  all  others;  that  in  its  performance  it  docs 
not  presuppose  the  existence  of  Borne  other  fact,  past  or 


672 SUPREME  COURT 

Ex  parte  Hill,  in   re  Armistead  v.  Confederate  States. 

present.  These  do  not  necessarily  inhere  in  the  subject- 
matter  in  hand,  but  are  the  accidents  of  the  particular 
case.  All  actions  are  shaped  or  moulded,  more  or  loss, 
by  their  accidents,  and  the  decision  which  Jthe  actor  pro- 
nounces upon  them.  Slocum,  iu  seizing  the  vessel  and 
cargo,  construed  the  act  of  congress  for  himself,  and  at- 
tained the  conclusion,  that  it  was  his  duty  to  detain  the 
cargo  as  well  as  the  vessel.  In  this,  he  traveled  beyond 
bis  authority.  The  act  of  congress  clothed  the  collector 
with  authority  to  decide,  in  the  first  instance,  whether  it 
was  the  intention  to  violate  or  evade  any  of  the  provis- 
ions of  the  acts  laying  an  embargo  ;  and  if,  in  his  opinion, 
such  was  the  intention,  he  was  authorized  to  detain  the 
vessel.  He  had  no  authority  to  detain  the  cargo.  The 
question  of  detaining  the  cargo  did. not  inhere  in,  or  per- 
tain to,  the  other  and  main  question,  namely,  was  there 
an  intention  to  violate  or  evade  the  law?  He  erred  iir 
deciding  this  question  of  law.  So,  in  the  case  of  the  mar- 
shal who  seized  the  goods  of  B  under  process  against  A. 
He  went  beyond  his  authority  when  he  seized  the  goods 
of  B,  and  by  that  act  became  a  trespasser.  True,  in  seiz- 
ing the  goods  of  A,  he  must  necessarily  determine  for 
himself,  in  the  first  instance,  what  goods  belonged  to  A  ; 
but  the  decision  was  rendered  necessary  only  by  the  acci- 
dent that  the  goods  of  A  and  B  were  in  a  state  of  confu- 
sion. This  is  no  more  than  the  case  of  C  and  D,  coter- 
minous land-proprietors,  between  whom  the  boundary  is 
open  and  unascertained  :  if  C,  whether  by  mistake  or  oth- 
erwise, go  over  the  line  upon  the  lands  of  1),  and  there 
cut  timber,  he  is  a  trespasser,  and  it  does  not  excuse  him 
that,  in  endeavoring  to  find  his  own  land,  he  must  neces- 
sarily decide  where  the  boundary  is. 

The  case  of  McOlung  v.  Sillimap,  supra,  illustrates  the 
other  phase  of  this  question.  In  that  case,  the  effort  wa; 
made,  through  the  instrumentality  of  a  State  court,  to 
compel  the  register  of  the  land-office  to  receive  proof  of 
the  legal  acts,  and  to  prepare  and  furnish  the  documents 
which  should  initiate  the  applicant's  claim  to  a  pre-emp- 
tion interest  in  a  tract  of  land.     The  register  refused  the 


OF  ALABAMA.  673 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

application.  It  will  be  observed,  that  the  register  was  fin 
officer  of  the  United  States,  and  was  specially  charged 
with  the  hearing  of  such  applications,  and  with  receiving 
and  acting  on  the  evidences  on  which  such  claims  were 
based  ;  and  that  all  this  was  done  under  laws  and  rules 
enacted  and  established  by  t'he  government  of  the  United 
States.  These  several  acts  were  part  and  parcel  of  the 
functions  with  which  the  la,nd-officer  was  expressly  clothed, 
and  pertained  naturally  an  I  universally  to  the  service  in 
which  he  was  engaged.  They  were  not  the  accidents  of 
the  case,  but.  were  important  functions  committed  to  him, 
which  were  called  into  exercise  >in  every  application  for 
pre-emption  made  io  his  district.  The  supreme  court  of 
the  United  States  denied  the  jurisdiction  of  the  State 
court  to  control  the  action  of  the  register  by  mandamus, 
saying:  ll.  The  question  in  this  case  is  as  to  the  power 
of  the  State  courts  over  the  officers  of  the  general  govern- 
ment, employed  in  disposing  of  that  land,  under  the 
laws  passed  for  Jiat  purpose.  And  here  it  is  obvious,  that 
he  is  to  be  regarded,  either  as  an  officer  of  that  govern- 
ment, or  as  its  private  agent.  In  the  one  capacity  or  the 
other,  his  conduct  can  only  be  controlled  by  the  power 
that  created  him." 

The  precise  facts  of  Mr.  Armistcad's  case,  as  made  by 
the  petition  for  habeas  corpus,  are  as  follows:  In  August, 
1862,  the  petitioner,  being  liable  to  conscription,  pro- 
cured and  placed  in  the  service  of  the  Confederate  States 
a  substitute,  who  was  over  thirty-live  years  of  age;  said 
substitute  was  accepted  by  the  proper  military  authori- 
ties, and  was  mustered  into  the  service,  and  thereupon 
the  said  Armistead  received  his  discharge.  The  enroll- 
ing  officer,  contending  that  the  probate  judge  has  no  ju- 
risdiction of  the  questions  presented  bv  Mr.  Armistead's 
petition,  makes  application  to  us  [or  the  writ  of  prohibi- 
tion to  that  officer. 

The  questions  which  arise  on  the  face  of  the  petition 
for  habeas  corpus^  are:  First,  was  a  substitute  for  Mr. 
Armistead  accepted   by  the  proper  government  offic< 


674  SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

4 — • " " — 

and  did  he  (Mr.  Armistead)  receive  his  discharge  ?  Second, 
is  the  legal  effect  of  that  discharge  such  as  to  exempt  Mr. 
Armistead  from  conscription  under  the  "act  to  amend 
an  act  entitled  'an  act  to  provide  for  the  public  defense,' 
approved  April  11.  1862,"  commonly  called  the  "'second 
conscript  act?" — C.  S.  Statutes  at  Large,  2d  session  of 
1st  Congress,  p.  61. 

No  question  is  made  in  this  case  on  the  fairness  of  the 
transaction  by  which  l<ir.  Armistead  obtained  and  put  in 
his  substitute  ;  and  nothing  need  be  said  in  this  case  on 
that  head. 

We  hold,  that  the  probate  judge  had  jurisdiction  of 
each  of  the  questions  above  stated.  The  first  is  a  question 
of  fact,  which  does  not  involve  any  revision  or  possible 
reversal  of  any  decision  pronounced  by  the  Confederate 
officer  or  officers,  charged  with  the  duty  of  receiving  sub- 
stitutes. It  does  not  involve  the  inquiry,  did  the  officer 
act  rightly  in  granting  the  discharge?  The  only  ques- 
tion is,  did  he  act?  If  the  petition  for  habeas  corpus  truly 
state  the  facts,  the  petitioner  had  received  his  discharge 
from  military  service  ;  and  the  question  of  fact  was,  dis- 
charge vel  non.  The  act  of  congress,  approved  April  16, 
1862,  (§  9,)  provides,  "  that  persons  not  liable  for  duty,  may 
be  received  as  substitutes  for  those  who  are,  under  such 
regulations  as  may  be  prescribed  by  the  secretary  of 
war." — Pamphlet  Acts  1st  session  of  1st  Congress,  p.  31. 
General  orders  Nos.  29  and  30,  of  1862,  of  dates  26th  and 
28th  April,  provide,  that  on  the  receipt  and  mustering  in 
of  such  substitute,  the  principal  furnishing  the  substitute 
shall  receive  his  discharge. 

The  second  question  was  one  of  law;  namely,  does  the 
discharge  thus  obtained,  and  not  vacated  for  fraud,  ope- 
rate an  exemption  from  military  service  under  the  second 
conscript  law?  The  decision  of  this  question  by  the  pro- 
bate judge  does  not  involve  a  revision  of  any  executory 
action  of  the  Confederate  officer.  If  it  be  a  revision  of 
anything,  it  is  simply  the  decision  of  the  Confederate  offi- 
cer, pronounced  on  the  legal  effect  of  certain  acts,  pre- 
viously performed  ;  nothing  more  nor  less  than  determin- 


OF  ALABAMA.  675 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

ing  whether  the  officer  rightly  decided  the  legal  question 
as  to  the  effect  of  the  substitution  and  discharge — the 
accident  of  Mr.  Armistead's  case.  If. both  of  these  ques- 
tions be  decided  in  favor  of  Mr.  Armistead,  he  stands  ab- 
solutely and  unconditionally  exempt  from  liability  to 
conscription,  under  the  law  as  it  then  stood.  If  either 0* 
them  be  decided  against  him,  he  was  not  illegally  re- 
strained of  his  liberty.  The  decision  of  neither  of  the 
questions  could  have  the  effect  of  reversing  or  annulling 
any  action  of  the  Confederate  officer,  the  performance  of 
which  was  specially  or  exclusively  confided  to  him.  The 
writ  of  prohibition  must  bo  refused. — Ex  parte  Hill,  at 
the  last  term. 

Judge  R.  W.  Walker  agrees  with  me  in  the  foregoing 
conclusions,  as  to  the  jurisdiction  of  the  probate  judge 
in  the  case  of  Armistead,  for  reasons  stated  by  himself. 
Chief-justice  A.  J.  Walker  dissents,  for  reasons  stated  by 
himself. 

The  bill  of  exceptions  in  the  case  of  Charles  II.  Dud- 
ley  omits  many  dates,  aud,  in  other  respects,  leaves  us  in 
doubt  as  to  the  true  state  of  facts  on  which  the  chancel- 
lor pronounced  his  decision.  The  present  application 
seeks  to  reverse  and  control  the  action  of  the  chancellor; 
and  under 'a  well-known  rule,  it  is  our  duty  to  draw  every 
fair  inference  favorable  to  his  correct  ruling.  If  there  be 
error,  the  party  excepting  must  affirmatively  show  its  ex- 
istence.—She]..  Dig.  572,  §§  145,  146;  Doe  v.  Godwin, 
30  Ala.  24-2;  GutKbrd  v.  Hicks,  36  Ala.  95. 

The  record  informs  us,  that  Mr.  Dudley  attempted  to 
show,  on  the  trial  of  the  habeas  corpus,  the  following  state 
of  facts:  That  in  August.  1862,  he  reported  himself  at 
camp  Watts,  with  one  Peters,  who  was  examined,  ac- 
cepted, and  mastered  into  the  service  as  Dudley's  substi- 
tute, and  he  (Dm! ley)  thereupon  received  his  discharg 
that  some  time  afterwards, (date  not  given,)  Major  Swan- 
son,  commandant  of  conscripts  at  that  camp,' had  him 
(Dudley)  ordered  bark  to  camp,  and  detained  him  there; 
that  the  pretense  on  which  he  was  ordered  back,  was  some  ' 


676  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

alleged  fraud  or  duress  practiced  in  procuring  and  putting 
in  his  substitute,  Peters;  that  lie  applied  to  the  secretary 
of  war  for  leave  to  examine  witnesses,  and  to  cross-exam- 
ine those  against  him  ;  that  this  application  was  received 
by  the  secretary  of  war  in  December,  1802;  that  there- 
upon the  sentence  was  suspended,  and  time  allowed  to 
rebut  the  evidence  against  him  ;  that  petitioner  sought  to 
have  an  order  made,  requiring  mutual  notices  of  the  time 
and  place  of  taking  testimony,  but  failed  to  obtain  such 
order;  that  on  the  last  day  allowed  to  petitioner  to  pro- 
duce proofs,  <fcc,  ex-parte  affidavits  were  again  produced 
against  him,  heard  as  evidence,  and  the  former  decision 
sustained;  that  he  again  applied  to  the  secretary  of  war, 
to  open  and  extend  the  time'  for  the  examination  of  wit- 
nesses, but  his  application  was  refused, — the  secretary  of 
war  ruling,  that  the  substitution  was  set  aside  for  fraud. 

No  dates  are  specified  when  any  of  these  transactions 
took  place,  exeept  three:  first,  the  order  of  the  secretary 
of  war  made  December  1, 18G2,  instructing  the  command- 
ant to  discharge  Peters  and  detain  Dudley  ;  second,  the 
time  alleged,  December,  18b"2,  when  the  secretary  of  war 
received  Dudley's  first  application  to  extend  the  time  for 
testimony;  and,  third,  that  the  extended  time  expired 
February  20th,  1863,  for  taking  testimony  in  the  cause. 
The  application  for  habeas  corpus  was  sworn  to-AprilOth, 
1863. 

When  the  trial  had  so  far  progressed,  as  to  bring  to  the 
notice  of  the  chancellor  the  fact  that  the  substitution  had 
been  set  aside  for  fraud,  and  the  order  of  the  secretary  of 
war  had  been  issued  thereon,  refusing  further  extension 
of  time,  and  approving  the  detention  of  Mr.  Dudley  as  a 
conscript,  the  chancellor  refused  to  proceed  with  the  ex- 
amination, declining  to  re-tr}^  the  question  of  fraud  in 
the  matter  of  putting  in  Peters  as  a  substitute  for  Dud- 
ley. We  are  asked  to  control  the  action  of  the  chancel- 
lor by  mandamus,  or  such  other  writ  as  may  be  necessary 
for  the  purpose. 

We  are  not  able  to  affirm  positively  whether  or  not  the 
•first  order,  vacating  the  substitution  for  fraud,  was  made 


OF  ALABAMA.  677 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

before  or  after  November  3d,  1862  ;  but  we  must  presume 
it  was  made  after  that  time,  as  that  presumption  is  most 
favorable  to  the  correct  ruling  of  the  chancellor.  The 
dates  given  incline  us  to  believe  such  was  the  fact. 

In  general  order  No.  82,  for  the  year  1802,  under  date 
of  November  3d,  ;ire  found  orders  relating  to  substitu- 
tion, from  which  we  make  the  following  extract :  "When 
a  person  claims  exemption,  on  the  ground  that  lie  has  put 
a  substitute  in  service,  he  must  exhibit  to  the  enrolling 
officer  a  discharge  from  some  company,  signed  by  t lie 
commanding  officer  of  the  regiment  or  command  to  which 
the  said  company  belongs,  or  then  belonged,  (see  general 
order  No.  26,)  or  an  exemption  signed  by  the  command- 
ant of  conscripts.  And  if  the  said  discharge  or  exemp- 
tion do  not  show  that  it  was  granted  in  consideration  of 
a  substitute  having  been  furnished,  such  fact  must  lie 
certified  in  writing  by  the  commanding  officer  of  the  regi- 
ment or  command  to  which  tlu  company  belongs,  or  by 
the  commandant  of  conscripts,  as  the  case  maybe.  But, 
in  ali  cases  arising  within  thirty  days  from  the  date  of 
this  order,  the  enrolling  officer  may  grant  the  exemption, 
upon  satisfactory  proof  that  the  party  furnished  a  substi- 
tute who  was  actually  received  into  the  service  of  the 
Confederate  States  for  three  years  or  the  war,  and  the 
substitute  is  not  liable  to  military  service.  Such  exemp- 
tion may  at  any  time  be  canceled,  if  fraud  or  mistake  be 
discovered." 

I  have  given  this  lengthy  extract,  not  because  each 
clause,  per  6e,  hears  on  the  question  before  us,  but  to  show 
by  the  context  what  are  the  meaning  and  purpose  of  the 
last  clausequoted.  What,  then,  is  the  meaning  of  the  lan- 
guage, '-such  exemption  may  at  any  time  be  canceled,  if 
fraud  or  mistake  be  discovered"?  Obviously,  not  that 
the  agreement  between  the  principal  and  the  substitute 
should,  as  a  binding  obligation  between  themselves,  be 
liable  to  be  canceled  for  fraud,  under  proceedings  had  in 
the  courts  of  the  country,  That  right,  so  far  as  they  were 
individually  eouoeraed,  existed  independently  of  the 
order.     Nor,  indeed,  had  the  secretary  y^{'  war  the  power 


678  SUPREME  COURT 


Ex  parte  Hifl,  in  re  Armistead  v.  Confederate  States. 

of  conferring  such  right  upon  mere  private  parties,  nor 
of  clothing  State  courts  with  such  authority. — 2  Story  on 
Cons.  §§  1755-0,  and  note  2.  Such  an  order,  having  that 
object,  could  not  he  regarded  as  a  regulation  of  the  privi- 
lege of  putting  suhstitutes  in  the  army.  Moreover,  it 
can  not  be  supposed  that  the  Confederate  government, 
even  if  it  had  the  power,  would  deem  it  necessary  to  fur- 
nish the  parties  with  a  safeguard  against  imposition  among 
themselves,  cumulative  and  special,  beyond  that  which 
all  citizens  enjoy  under  the  general  law.  Fraud  upon  the 
public  service  was  evidently  had  in  contemplation.  This 
is  shown  by  the  language  of  the  order,  and  b}T  the  con- 
text, and  is  fully  confirmed,  if  confirmation  be  necessary, 
by  the  great  notoriety  which  the  numerous  frauds  of  that 
kind  had  acquired  in  the  country. 

This  being  the  case,  it  is  manifest  that  the  inquiry  of 
fraud  vel  von,  for  which  the  order  makes  provision,  was 
not  intended  to  take  place  in  the  ordinary  course  of  pro- 
ceedings in  the  courts  of  the  country.  The  intention 
was,  that  the  commanding  officer,  or  commandant  of  con- 
scripts, should  inquire  of  and  determine  the  question  of 
fraud  in  the  matter  of  the  substitution.  The  purpose  of 
the  order  was,  to  protect  the  public  service  against  frauds 
on  the  privilege  of  putting  in  substitutes.  The  officers 
above  named  were,  bjr  irresistible  implication,  charged 
with  the  duty  of  trying  the  question  of  fraud;  and,  if  it 
were  found  to  exist,  of  canceling  the  exemption.  There 
is  doubtless  a  final  appeal  to  the  secretary  of  war  in  such 
cases;  but  when  the  decision  is  finally  pronounced,  the 
result  is,  if  there  has  been  fraud,  to  turn  the  substitute 
out  of  the  service,  and  to  place  the  principal  in.  In  pass- 
ing upon  the  question  of  fraud  vel  non,  the  commanding 
officer,  commandant  of  conscripts,  or  secretary  of  war, 
as  the  case  may  be,  must  necessarily  and  uniformly  hear 
and  decide  upon  evidence,  and  draw  inferences  from  facts. 
These  things  inhere  in  the  very  nature  of  the  inquiry  to 
be  made.  They  always  come  up,  and,  hence,  are  not  the 
accidents  of  the  particular  case.  They  are  like  the  pre- 
liminary proofs,  and  documentary  exemplifications,  which 


OF  ALABAMA.  679 


Ex  parte  Hill,  id  re  Aimistead  v.  Confederate  States. 


pertain  to  the  functions  of  a  land-office  register,  in  the 
matter  of  pre-emption  claims.  To  allow  the  State  courts 
to  re-try  or  re-examine  the  facts  on  which  snch  decision 
is  pronounced,  is  to  give  to  the  courts  of  the  State  gov- 
ernment appellate  jurisdiction  over  the  commanding  offi- 
cers, commandant  of  conscripts,  or  the  secretary  of  war  ; 
officers  who  receive  their  appointments  from  the  Confed- 
erate government,  and  arc  specially  charged,  by  that  gov- 
ernment, with  the  performance  of  these  functions.  The 
issue  in  such  cases  is  not  solely,  nor  even  mainly,  between 
the  principal  and  the  substitute.  The  Confederate  gov- 
ernment is  directly  concerned  in  the  result;  and,  in  its 
military  service,  will  be  the  chief  sufferer  from  a  reversal 
of  the  decision  pronounced  by  the  commanding  officer, 
or  other  officer  acting  in  the  premises.  State  courts  have 
no  authority  to  re-try  the  question  of  fraud  vel  non,  in  the 
matter  of  putting  a  substitute  into  the  army,  under  the 
rules  above  copied. 

If  the  commandant  of  conscripts,  or  the  secretary  of 
war,  in  violation  of  the  plain  rules  of  law,  canceled  the 
substitution  in  this  case,  on  evidence  furnished  by  ex  parte 
affidavits,  or  refused  to  require  notice  of  the  time  and 
place  of  taking  the  testimony,  or  did  not  afford  to  Mr. 
Dudley  an  opportunity  to  cross-examine  the  witnesses 
against  him,  each  and  all  of  these  are  but  an  erroneous 
exercise  of  rightful  authority — not  usurpation.  The  re- 
dress, if  there  be  any,  must  be  invoked  from  the  authori- 
ties of  that  government  which  created  the  officer,  and 
clothed  him  with  his  functions. — McClung  v.  Silliman, 
6  Wheat.  598;  Ableman  v.  Booth,  21  How.  506. 

The  chancellor  did  not  err  in  refusing  to  ro-try  the 
question  of  fraud  ;  and  the  motion  of  petitioner  must  be 
denied. 

The  chief-justice  concurs  in  this  conclusion.  His  own 
opinion  contains  his  reason*.  The  opinion  of  Judge  K. 
W.  WALKER  shows  how  h<'  stands. 

Mr.  Armistead's  application  for  enlargement  rest?,  as 
his  petition  informs  us,  on  the  fact  that,  in  August,  1862, 


680  ,  .  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  gtates. 

he  put  in  a  substitute,  who  was  over  thirty-five  years  of 
age,  and  who  was  accepted,  and  he  (Armistead)  dis- 
charged. The  petition  does  not  averr  that  the  substitute 
was  over  forty  years  old  when  the  writ  of  habeas  corpus 
was  applied  For.  The  application  was  made  January  27, 
1863, — after  the  passage  of  the  amendment  to  the  con- 
script law  of  September  27,  186?,  and  after  the  call  of  the 
president  for  all  np  to  the  age  of  forty  who  were  not 
legally  exempt.  We  Suppose,  from  the  silence  of  the  pe- 
tition, that  the  substitute  was  in  fact  under  forty  years  of 
age;  and  that  the  real  controversy  between  Mr.  Armistead 
and  the  enrolling  officer,  grows  out  of  a  difference  of 
opinion  between  them,  as  to  the  effect  of  the  president's 
call  for  conscripts  up  to  the  age  of  forty,  on  those  persons 
who  had  previously  obtained  their  discharge  by  putting 
in  substitutes  who  were,  at  the  time  of  the  second  call, 
liable  to  do  military  service  on  their  own  account,  being 
within  the  then  conscript  age.  Supposing  this  to  be  the 
main  question  in  the  cause,  and  entertaining,  as  we  do,  a 
deliberately  formed  opinion  upon  it,  with  which  we  are 
satisfied,  we  will  proceed  to  announce  itf  for  the  guidance 
of  the  present  trial,  and  for  others  similarly  circum- 
stanced. 

What,  then,  is  the  effect  upon  the  principal  of  the  en- 
largement of  the  conscript  age,  so  as  to  embrace  within 
its  scope  the  substitute  on  whose  account  the  principal 
had  obtained  his  discharge?  The  conscript  law  (section 
9)  declares,  "that  persons  not  liable  for  duty,  maybe 
received  as  substitutes  for  those  who  are,  under  such 
regulations  as  may  be  prescribed  by  the  secretary  of  war." 
Stat,  at  Large,  1st  session  of  1st  Congress,  p.  31.  This 
clause  of  the  statute  applies  equally  to  conscripts  called 
for  under  the  second  conscript  law,  which  is  but  an 
amendment  of  the  first. — Stat,  at  Large,  2d  sess.  1st  Con- 
gress, 61.  The  regulations  prescribed  by  the  war  depart- 
ment for  carrying  into  effect  the  conscript  laws,  -so  far  as 
they  affect  the  question  in  hand,  are  found  in  general 
orders  of  the  year  1862,  Nos.  29,  30,  37  and  64.  General 
order  Eo.  29,  of  date  April  26,  1862,  and  general  order 


OF  ALABAMA.  680 

, _ 


Ex  parte  Hill,  iu  re  Arinistead  v.  Confederate  States. 

No.  30,  of  date  April  28,  provide  the  rales  for  reporting, 
examining,  receiving  and  mustering  in  the  substitute, 
and  for  discharging  the  principal.  General  order  No.  37, 
of  May  10, 1862,  after  copying  the  first  exemption  statute, 
and  specifying  certain  exempts  from  military  service,  con- 
tains this  clause:  "IV.  No  persons,  other  than  those  ex- 
pressly named,  or  properly  implied  in  the  above  act,  can  be 
exempted,  except  by  turnisbinga  substitute  exempt  from 
military  service,  in  conformity  with  regulations  already 
published,  (general  orders  No.  29;)  and  such  exemption 
is  valid  only  so  long  as  the  said  substitute  is  legally  ex- 
empt." General  order  No.  64,  September  8,  1802,  con- 
tains this  clause:  "A  substitute  becoming  liable  to  con- 
scription, renders  his  principal  also  liable,  unless  exempt 
on  other  grounds." 

Three  decisions  have  been  brought  to  our  notice,  pro- 
nounced on  applications  similar  to  that  of  Mr.  Armistead : 
One  iu  the  matter  of  Cohn,  made  by  Judge  McGratu,  of 
the  district  court  of  South  Carolina;  a  second  in  the  mat- 
ter of  Underwood  and  Allen,  made  by  Judge  Jones,  of 
the  district  court  of  Alabama;  the  third,  in  the  matter  of 
Irviu.  made  by  C.  J.  Pearson,  of  the  North  Carolina  su- 
preme court.  Each  of  the  opinions  delivered  iu  these 
causes  ignores  general  order  No.  87,  of  May  19;  and 
neither  Judge  Jones  nor  Chief-Justice  Pearson  mates  any 
allusion  to  general  order  No.  64,  of  September  8.  Wo 
must  suppose  their  attention  was  not  directed  to  these 
orders.  Judge  McQrath  makes  some  allusion  to  general 
order  No.  64;  but  he  treats  it,  not  in  its  legislative,  or 
prospective  feature,  but  in  .its  judicial,  or  retrospective 
bearings,  lie  announced  the  opinion,  that  it  was  within 
the  power  of  Congress,  or  the  president,  to  call  into  the 
military  service  those  who  had  been  (discharged  on  put- 
ting in  substitutes;  but  that  the  secretary  of  war  could 
not  do  so.     These  three  decisions  ar  i,  mainly,  on 

the  constructions  which  the  learned  judges  delivering 
them  place  on  the  two  conscript  laws  of  April  16,  and 
September  27,  1862. 

The  line  of  argumeut  employed  in  these  eeveral  opinions 
44 


€82  SUPREME  COURT 


Ex  parte  Hill,  in  re  Arxhisteac!  v.  Confederate  States. 
53  not  precisely  the  same;  but  in  the  points  actually  de- 
cided, there  is  a  substantial  conformity.  The  following 
propositions,  it  is  believed,  express  the  principles  on 
which  each  of  them  rests,  with  sufficient  accuracy  to  do 
the  authors  of  them  no  great  injustice:  First,  That  the 
petitioners,  by  putting  in  substitutes,  had  obtained  dis- 
charges under  the  act  of  April;  Second,  That  the  act  of 
September  placed  in  the  army  only  those  persons  who 
are  between  the  ages  of  thirty-five  and  forty-five,  and, 
consequently,  did  not  put  into  the  army  the  petitioners, 
who  were  under  thirty-five;  Third,  That  the  act  of  Sep- 
tember was  passed  to  call  into  the  service  persons  within 
the  specified  age,  who  were  out  of  the  service — not  those 
who  were  in,  as  the  substitutes  were;  and  that  congress 
cannot  be  supposed  to  have  intended  that  the  substitutes 
'should  be  mustered  out  of  the  service,  that  they  might  be 
again  mustered  in  as  conscripts,  in  order  thereby  to  reach 
the  principals  who  put  in  those  substitutes. 

To  each  and  all  these  propositions,  as  expressed,  we 
Unhesitatingly  assent.  The  conclusion  drawn  from  them 
13  not  so  clear.  But,  what  is  meant  by  the  idea  expressed 
in  these  opinions,  that  the  substitute  is  not  to  be  mus- 
tered out  of  the  service,  that  he  may  be  again  mustered 
in  as  a  conscript ?  Is  it  intended  thereby  to  combat  an 
argument,  leading  to  revivor  of  the  principal's  liability  to 
military  service  under  general  order  No.  64,  provided  the 
substitute  is  under  forty?  If  such  be  the  argument,  we 
think  it  entirely  misconstrues  the  language  of  general 
order  No.  64 — viz.,  "A  substitute  becoming  liable  to  con- 
scription, renders  his  principal  also  liable,  unless  exempt 
on  other  grounds."  It  does  not  mean  that  the  substitute 
shall  be  in  fact  conscribed.  The  language  will  not  admit 
of  such  construction,  without  great  violence  to  its  terms. 
The  object  of  the  regulation  was  not  to  place  the  substi- 
tute in  the  army^  he  was  already  in.  The  purpose  was 
to  declare  the  effect  and  scope  of  the  exemption  which 
the  principal  should  enjoy,  as  the  result  of  putting  in  a 
substitute.  Its  operation  was  upon  the  principal;  but  the 
event  or  contingency,  on  which  its  operation  depended, 


OF  ALABAMA.  688 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

pertained  to  the  substitute.  "  Becoming  liable  to  con 
scription,-'  must  mean  that,  in  consequence  of  a  change  o± 
the  law,  or  of  the  status  of  the  substitute,  he  come? 
within  the  age  or  description  of  persons  liable  to  do  mili- 
tary eervice  on  their  own  account.  He  cannot  perform 
double  service;  and  being  liable  to  serve  on  his  own  ac- 
count, he  ceases  to  be  a  valid  substitute  for  another. 
.  He  has  then  become  liable  to  conscription. 

The  true  construction  of  the  statute  and  general  order 
is,  that  persons  under  thirty-five  years  of  age,  who  put  in 
substitutes  between  the  ages  of  thirty-five  and  forty,  are, 
in  consequence,  thereof,  exempt  from  military  service, 
only  until  the  substitute,  by  a  change  of  the  conscript 
age,  or  other  circumstance,  is  embraced  within  the  terms 
ofthe'call.  The  principal  then  becomes  again  liable  to 
serve  in  his  own  place;  not  under  the  act  of  September. 
but,  under  the  act  of  April,  frpm  which  service  he  had 
enjoyed  a  temporary  and  defeasible  exemption. 

What  we  have  said  above  is  in  reply  to  a  supposed  ar- 
gument, based  on  general  order  .No.  04.  That  order  was 
issued  on  the  8th  September,  a  month  or  more  alter  Mr. 
Armistead  claims  to  have  put  in  his  substitute.  We  need 
not.  and  do  not,  decide  whether  that  order  was  intended 
to  operate  retrospectively,  or  only  upon  substitutions  per- 
fected after  that  time.  Mr.  Armistead's  case  is  clearly 
covered  by  general  order  No.  ,57,  of  May  10,  copied 
above;  for  his  substitute  was  put  in  in  August,  more  than 
two  months  after  that  order  was  issued.  The  statute,  in 
conferring  the  privilege  of  putting  in  substitutes,  pro- 
vided that  it  should  be  "under  such  regulations  as  may 
be  prescribed  by  the  secretary  of  war."  Substitution  is 
not,  pev  sef  a  right:  it  is  a  boon — a  privilege  conferred. 
Congress,  in  granting  it,  was  authorized  to  clog  it  with 
conditions;  and  it  did  so.  It  cannot  be  claimed,  without 
n  compliance  with  the  regulations  issued  from  the  war 
department ;  and  these  regulations  may  be  changed  from 
time  to  time.  The  orders  of  26th  and  2Sth  April — Nos. 
29  and  30 — contain  no  such  clause  as  that  found  in  the 
order  of  19th  May.     Perhaps  that  subject  was  not  thought 


684  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


of  when  the  orders  of  April  were  issued.  The  order  of 
May  is  too  clear  to  admit  of  cavil  or  doubt.  It  provides, 
that  the  exemption  obtained  on  putting  in  a  substitute, 
"is  vali'd  only  so  long  as  the  substitute  is  exempt."  This 
regulation,  being  made  pursuant  to  authority  conferred 
by  congress,  has  the  binding  efficacy  of  law.  It  was  part 
of  the  public  law  when  Mr.  Armistead  put  in  his  substi- 
tute, and  therefore  became  part  and  parcel  of  the  act 
done,  lie  cannot  complain  of  a  breach  of  governmental 
faith,  for  he  is  charged  with  a  knowledge  of  the  terms  on 
which  his  substitute  was  received.  Neither  can  it,  with 
any  plausibility,  be  contended,  that  the  order  ot  19th  of 
May,  declaring  when  the  exemption  shall  expire,  must  be 
restricted  in  its  operation  to  a  certain  limited  number  of 
contingencies,  on  the  happening  of  some  one  of  which 
the  exemption  of  the  principal  shall  cease.  The  language 
is  as  broad  as  it  can  be  expressed — "only  so  long  as  the 
said  substitute  is  legally  exempt."  If  under  forty,  he  ceased 
to  be  legally  exempt  when  the  call  was  made  for  con- 
scripts up  to  that  age;  and  Mr.  Armistead's  exemption, 
by  reason  thereof,  then  ceased  to  be  valid. 

We  might  add  to  this  argument,  but  do  not  perceive 
how  we  could  make  it  clearer.  It  is  otie  of  those  plain 
propositions  which,  in  our  conception,  scarcely  leaves 
any  field  for  argument.  Its  strength  lies  in  the  state- 
ment of  it.  / 

The  supreme  court  of  the  State  of  Georgia,  on  the  ap- 
plication of  Farrell  and  Williams,  has  recently  had  this 
subject  under  discussion,  and  has  placed  the  same  con- 
struction which  we  do  on  the  order  of  May  19,  1862. 

We  need  not,  and  do  not,  decide  whether  general  or- 
der No.  -37  retroacts  on  cases  of  substitution  which  were 
consummated  before  it  was  issued.  Ko  case  of  that  kind 
has  come  before  us,  and  we  reserve  our  opinion  until  the 
question  is  properly  presented. 

It  may  not  be  improper  to  add,  that  this  part  of  the 
opinion  is  concurred  in  by  the  entire  court. 

A.  J.  WALKER,   C.  J.— Iu  Ex  parte  Hill,  at  the  last 


OF  ALABAMA.  685 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


term,  I  delivered  an  opinion,  denying  the  jurisdiction 
of  a  State  judge  to  discharge,  on  habeas  corpus,  one  who 
had  been  enrolled  as  a  conscript,  upon  the  ground  of  his 
exemption  from  conscription.  Neither  subsequent  read- 
ing and  reflection,  nor  the  opposing  arguments  of  other 
judges,  have  changed  my  convictions.  The  question 
again  arises  in  these  eases  ;  and  I  embrace  the  (opportu- 
nity which  is  thus  afforded,  to  fortify  and  extend  my  for- 
mer argument.  In  doing  so,  I  shall  avoid,  as  far  as  pos- 
sible, a  repetition  of  what  I  have  heretofore  said.  I 
therefore  refer  to  my  opinion  ;n  Ex  parte  Hill  in  re  Willis 
et  «[.,  which  must  be  read  in  connection  with  this,  iu 
order  that  the  entire  argument  may  be  understood. 

While  the  State  courts  have  a  concurrence  of  jurisdic- 
tion with  the  courts  of  the  general  government,  where 
there  is  no  legislative  exclusion,  over  most  subjects  cog- 
nizable in  the  latter  tribunals,  this  concurrence  is  not 
universal.  The  line  o.f  division  between  the  concurrent 
and  exclusive  jurisdiction  of  the  courts  of  the  general 
government  is  not  distinctly  and  clearly  defined.  I  refer 
to  discussions  upon  that  subject,  without  comment,  as 
my  argument  does  not  require  that  I  should  attempt  to 
deduce  from  the  authorities  any  general  rule,  which  will 
govern  in  all  cases  the  question  of  concurrence  or  exclu- 
siveness  of  jurisdiction; — 1  Kent's  Com.  (m.  pp.)  3D5  to 
401;  Martin  v.  Hunter,  1  Wheat.  304;  Houston  v.  Moore, 
5  Wheat.  1 ;  Teal  v.  Felton,  12  How.  284.  I  adopt,  with 
a  modification  as  to  the  name  of  the  government,  the 
following  language  of  Judge  Story:  "It  would  be  diffi- 
cult, and  perhaps  not  desirable,  to  lay  down  any  general 
cules  in  relation  to  the  cases  iu  which  the  judicial  power 
of  the  courts  of  the  United  Stales  is  exclusive  of  the 
urts,  or  in  which  it  may  be  made  so  by  congress, 
until  they  shall  be  settled  bv  some  positive  adjudication 
Ot  the  .supreme  court.  That  there  are  some  eases,  in 
i  that  power  is  exclusive,  can  not  well  be  doubted; 
that  there  are  other  cases,  in  which  itmay  be  made  so  by 
.admits  of  as  little  doubt;  and  that  in  other 
,  it  is   concurrent  iu   the  State  courts,  at    least  until 


686  SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

congress  shall  have  passed  some  act  excluding  the  con- 
current jurisdiction,  will  scarcely  be  denied." — 2  {Story's 
Com.  on  the  Constitution,  §  1754. 

The  concurrence  of  jurisdiction  in  the  State  courts, 
over  subjects  falling  within  the  judicial  power  of  the 
Confederate  States,  is  subject  to  exception.  The  judicial 
power  f)f  our  general  government  extends  to  all  cases 
arising  under  its  constitution  and  laws.  I  maintain,  that 
so  much  of  that  jurisdiction  "as  is  exercised  in  the  appli- 
cation of  judicial  correctives  to  the  irregularities  and 
errors  of  the  executive  officers  of  that  government, 
charged  with  the  enforcement  of  the  conscript  law,  is  ne- 
sessarily  exclusive ;  and  that  such  officers,  when  acting 
within  the  limits  of  their  authority,  can  not  be  interfered 
with  by  a  State  court,  although  they  may  commit  errors. 
As  the  government,  in  the  execution  of  the  conscript 
law,  reaches  and  affects  the  persons  of  its  citizens;  and 
as  any  irregularity  or  error  of  thft  officers  must  wrong- 
fully infringe  the  liberty  of  the  citizen,  the  corrective 
must  be  obtained  through  a  writ  of  habeas  corpus,  opera- 
ting upon  the  erring  officer.  The  proposition  which  I 
maintains,  leads,  therefore,  directly  to  the  assertion,  that 
the  erroneous  action  of  such  officer,  within  the  limits  of 
his  authority,  or  the  incoyeetness  with  which  he  dis- 
charges his  duty,  although  injuriously  affecting  the  lib- 
erty of  the  citizen,  may  be  corrected  by  a  Confederate, 
but  not  by  a  State  court,  through  the  instrumentality  of 
the  writ  of  habeas  corpus. 

The  constitution  bestows  upon  the  government,  not 
only  the  power  of  making  laws,  but  the  power  of  execu- 
ting them.  It  prescribes  that  the  president  ''shall  take 
care  that  the  laws  be  faithfully  executed."  Under  the 
old  articles  of  confederation,  which  preceded  the  consti- 
tution of  the  United  States,  the  important  powers  of  the 
government  were  executed  through  the  agency  of  the 
States.  The  clause  of  the  constitution  above  stated  rem- 
edies that  defect  in  the  old  system,  and  gives  to  the  gov- 
ernment authority  to  act  directly  upon  individuals  in  the 
execution  of  its   powers. — Federalist,  XV.  pp.  65  to  71  ; 


____________        _0F  ALABAMA.  087 

Ex  parte  Hill,  in  re  Armistead  v,  Confederate  States. 

CJalhoun  on  the  Government  and  Constitution  of  the 
United  States,  168.  The  constitutional  authority  to  exe- 
cute the  law,  is  as  ample  and  complete  as  the  authority 
to  pass  it.  The  execution  of  the  law  must  be*  accom- 
plished, generally,  through  subordinate  officers.  Con- 
gress may  prescribe  the  duties  of  such  subordinate  offi- 
cers, but  the  constitution  bestow*  authority  to  perform 
those  duties.  The  constitution  imposes  no  qualification 
or  restriction  upon  this  authority  to  execute  the  law. 
The  political  doctrines  of  secession  and  nullification  sug- 
gest remedies  tor  the  usurpation  of  power,  by  the  action, 
of  bodies  representing  the  sovereignty  of  the  States.  The1  ■ 
line  of  my  argument  does  not  touch  either  Of  those  doc- 
trines. When  the  government,  in  the  exercise  of  its 
constitutional  power  to  execute  the  law,  through  its  offi- 
cer, errs  in  the  performance  of  its  duty,  and  wrongfully 
touches  the  liberty  or  property  of  the  citizen,  the  remedy 
by  which  the  error  rcflay  be  corrected  and  the  wrong  pre- 
vented is  judicial.  To  concede  the  power  of  a  State  court- 
to  apply  that  remedy,  and  thus  to  interfere  with,  and  con. 
trol  and  govern  as  to  the  manner  of  executing  the  law, 
is  to  confess  that  the  power  of  execution  is  qualified  and 
restricted  to  such  mode  and  to  such  line  of  conduct  as  a 
State  judge  may  approve.  This  power  of  executing  the  ' 
law  is  delegated  by  all  the  States,  for  their  common  good; 
and  it  would  be  a  usurpation  for  the- judge  of  one  State 
to  assume  to  control  the  government  in  the  exorcise  of 
that,  power,  it' such  control  can  he  exerted  by  the  judge 
in  one  State,  it  might  result,  that  a  power  conferred  fur 
the  good  of  all,  when  performed  in  a  manner  approved 
by  the  judges  of  all  the  States  except  one,  would  be 
thwarted  by  the  interference  of  the  judge  in  the  single 
State  who  differed  in  opinion  from  the  judges  in  the  other 
States.     The  gave  the  power,  without  qualii 

lion.     This  gift  i-  the  surrender  of  all  right   to  control 
the  government  in  ti:  >f  it. 

I  do  not  say  'hat  congress  can  abridge  Or  qualify  the 
jurisdiction  of  the  State  courts.  The  want  of  authority 
in  the  State  tribunals,  to  supervise   and  control  the  exe- 


688 SUPlfcEME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

eutive  officers  of  the  Confederate  States,  in  the  exercise 
of  their  appointed  functions,  by  the  writs  of  injunction, 
replevin,  habeas  corpus,  or.  other  process,  results  from  the 
delegation  in  the  constitution  of  an  unqualified  power  to 
execute  the  laws  which  congress  may  enact,  and  not  from 
any  denial  of  such  authority  hy  act  of  congress.  If  a 
State  court  can  not  correct,  under  a  writ  of  habeas  corpus, 
the  errors  of  the  enrolling  officers  engaged  in  enforcing 
the  law  of  conscription,  it  is  because  .the  constitution 
bestows  the  power  to  execute  the  law  without  any  quali- 
fication that  it  shall  be  done  in  a  manner  consistent .with 
the  judgment  of  a  State  judge,  and  not  because  congress 
has  suspended,  or  can  suspend,  the  writ  of  habeas  carpus. 

The  constitutional  power  of  executing  the  laws  of  con- 
gress, whether  they  touch  the  person  or  the  property  of 
the  citizen,  can  not  be  subordinated  to  the  authority  of 
a  State  tribunal,  by  its  supervision  and  control  of  the 
conduct  of  the  executive  officers  aating  within  the  area 
of  their  jurisdiction.  This  is  an  inevitable  deduction 
from  the  proposition,  that  the  general  government  is, 
within  the  sphere  of  its  delegated  powers,  co-ordinate 
with  the  respective  States,  and  their  equal;  and  that, 
within  the  area  of  its  appointed  attributes,  its  authority 
is  as  paramount  as  that  of  the  States  within  the  bound- 
ary of  the  powers  not  delegated  nor  surrendered.  No 
ingenuity  can  successfully  controvert  this  proposition. 
It  rests  for  its  basis  upon  the  unqualified  character  of  the 
grants  of  authority  by  the  constitution.  It  has  the  re- 
peated sanction  of  Mr.  Calhoun,  who,  for  years,  applied' 
hi3  logic  and  learning  to  the  investigation  of  the  relations 
of  the  States  with  the  government  of  the  United  States; 
who  stood,  in  life,  the  vigilant  guardian  of  the  rights  of 
the  States,  and  a  foe  to  the  encroachments  of  the  Federal 
government ;  and  who,  dying,  has  left  in  his  "  Discourse 
on  the  Constitution  and  Government  of  the  United 
States,"  his  views  as  matured  by  experience  and  pro- 
tracted application  to  the  subject.  From  this  posthu- 
mous work  I  make  the  following  extract: 

"  The  government  of  the  States  sustained  to  the  for- 


OF  ALABAMA.  689- 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


mer  [the  confederacy  which  preceded  the  constitution  of 
the  United  States]  the  relation  of  superior  to  a  subordi- 
nate,— of  the  creator  to  the  creature;  while  they  now 
sustain  to  the  latter  [the  government  of  the  Uuited  States} 
the  relation  of  equals  or  co-ordinates.  Both  govern- 
ments— that  of  the  United  States  and  those  of  the  separate 
States — derive  their  powers  from  the  same  source,  and 
were  ordained  and  established  by  the  same  authority  ; 
the  only  difference  being,  that  in  ordaining  and  estab- 
lishing the  one,  the  people  of  the  several  Stales  acted 
with  concert,  or  mutual  understanding;  while  in  ordain- 
ing and  establishing  the  others,  the  people  of  each  State 
acted  separately,  and  without  concert  or  mutual  under- 
standing, as  has  been  fully  explained.  Deriving  their 
respective  powers  from  the  same  source,  and  being  or- 
dained and  established  by  the  same  authority,  the  two  gov- 
ernments, Slate,  and  Federal,  must,  of  necessity,  be  equal  in 
respective  spheres;  and  both  being  ordained  and 
established  by  the  people  of  the  States  respectively,  each 
for  itself  and  by  its  own  separate  authority,  the  constitu- 
tion and  government  of  the  United  States  must,  of  neces- 
sity, be  the  constitution  and  government  of  each,  as  much 
ho  as  its  own  separate  and  individual  constitution  and 
government;  and  therefore  they  must  stand,  in  each  State, 
in  the  relation  of  co-ordinate  constitutions  and  governments." — 
Pages  lb 6-1(37. 

"It  is  obvious  from  this  sketch,  brief  as  it  is,  taken  in 
connection  with  what  has  b«  eu  previously  established, 
that  the  two  governments,  general  and  State,  stand  to 
each  other,  in  the  first  place,  in  the  relation  of  parts  to 
the  whole  ;  not,  indeed,  in  reference  to  their  organization 
or  functions,  for  in  this  respect  they  are  perfect  ;  bui  in 
reference  to  their  powers.  As  they  divide  between  them 
the  delegated  powers  appertaining  to  the  government, 
and  as  of  courst  each  '  what  the  other  , 

it  naturally   requires  the  two    united    to  constitute  one 
entire  g<  iverumeut. 

thin  the   sphm  of  thi  then  ihcy 

stand  with  istain  the  relation 


690  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  St 


of  co-ordinate  governments,  has  been  fully  established. 
As  co-ordinates,  they  sustain  to  each  other  the  relation 
which  subsists  between  the  diflerent  departments  of  gov- 
ernment— the  executive,  the  legislative,  and  the  judicial, 
and  for  the  same  reason.  These  are  co-ordinates,  because 
each,  in  the  sphere  of  its  power  ■ .  al  to,  and  independent 

of  the  others,  and  because  the  three  united  make  the  gov- 
ernment. The  only  difference  is,  that,  in  the  illustra- 
tion, each  department  by  itself  is  not  a  government,  since 
it  takes  the  whole  in  connection  to  form  one;  while  the 
government  of  the  several  States  respectively,  and  that 
of  the  United  States,  although  perfect  governments  in 
themselves,  and  in  their  respective^  spheres,  require  to 
be  united,  in  order  to  constitute  one  entire  government. 
They,  in  this  respect,  stand  as  principal  and  supplemental, 
while  the  departments  of  each  stand  in  the  relation  of 
partsto  the  whole." — Pages  197-198. 

••That  they  are  both  governments,  and  as  such  possess 
all  the  powers  appertaining  to  government,  within  the 
sphere  of  their  respective  powu-s — the  one  as  fully  as 
the  other — can  not  be  denied.-' — Page  241.  See,  also, 
pages  226,  212,  213,  252,  253. 

The  preamble  to  the  constitution  of  the  United  States 
represents  that  instrument  to  be  ordained  ami  established 
by  "the  people  of  the  United  States."  The  preamble 
to  the  constitution  of  the  Confederate  States  represents 
it  to  he  ordained  and  established  by  "the  people  of  the 
Confederate  States,  each  acting  in  its  sovereign  and  inde- 
pendent character."  The  latter  is  precisely  what  Mr. 
Calhoun  construed  the  former  to  be. — Discourse  on  Con. 
and  Gov.  of  U.  S.,  p.  128.  The  pertinency  of  Mr.  Cal- 
homi's  observations  to  the  question  in  hand  is,  therefore, 
not  affected  by  the  difference  in  language  just  noticed. 

Under  our  compound  system  of  government,  the  gen- 
ral  government  and  the  States  are  the  peers  of  each 
other;  and  the  authority  of  each,  within  the  scope  of  its 
powers,  is  paramount  pver  the  other.  To  each  there  is  a 
like  negation  of  right  to  control  the  other  in  the  exercise 
of  its  authority.     The  State  cau  no  more  control  the  gen- 


OF  ALABAMA.  691 


Ex  parte  Hill,  in  ro  Armistead  v.  Confederate  States. 

eral  government  in  the  exercise  of  its  power*  through  its 
appointed  agents,  than  can  the  general  government  con- 
trol the  States  in  the  exercise  of  their  respective  powers. 
The  courts  of  the  general  government  are  limited  in  their 
jurisdiction.  Aside  from  this  consideration,  and  as  a 
mere  question  of  governmental  power,  the  State  tribunals 
can  no  more  release  from  the  custody  of  the  executive 
officers  of  the  general  government  one  taken  as  a  soldier, 
because,  in  the  judgment  of  such  tribunal,  such  person 
was  not  within  the  operation  of  the  act  of  congress,  than 
could  a  tribunal  of  the  general  government  take  from  the 
custody  of  a  State  officer  one  taken  as  a  State  soldier, 
because,  in  its  judgment,  such  person  was  not  within  the 
operation  of  the  act  of  the  State  legislature.  This  must 
be  so;  otherwise,  the  two  governments  are  not  co-ordi- 
nate or  equal. 

Chief-Justice  Taney,  speaking  the  unanimous  opinion 
of  the  judges  of  the  supreme  court  of  the  United  Sti 
but  carried  the  propositions  of  Mr.  Calhoun  to  their  obvi- 
ous and  necessary  result,  when,  in  the  case  of  Ablemau 
v.  Booth,  (21  How.  516,)  he  penned  the  following  m'ii- 
tence :  "The  powers  of  the  general  government  and  of 
the  States,  although  both  exist,  and  are  exercised  within 
the  same  territorial  limits,  are  yet  separate  and  distinct 
sovereignties,  acting  separately  and  independently  of  each 
r  within  their  respective  spheres.  And  the  sphere  of 
action  appropriated  to  the  United  States  is  as  far  beyond 
the  reach  of  the  judicial  process  issued  by  a  State  judge, 
as  if  the  line  of  division  was  traced  by  landmarks  and 
monuments  visible  to  thee;.  While  this  sentence  has 

been  criticised  for  even  its  guarded  application  of  the 

term  \ttj  to  the  government    of  the  United  Slates, 

and  its  import,  but  the  embodiment 

of  a  great  principle,  obviously  dcducible  from  the  teach- 
ings of  Mr.  ( 'allumn. 

The  principle  for  which    I   .(intend,    is   not    only    - 
tained  h.  ing  drawn  from  the  relation  of  the  gov- 

ernment aud   ( Jonfederate,  to  each  other,  1  , 

er  id 


692 SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


bound  to  respect,  if  not  to  obey.  The  embargo  act  of 
1808  authorized  collectors  of  customs  to  detain  vessels, 
whenever  in  their  opinion  there  was  an  intention  to  vio- 
late the  provisions  of  the  act ;  but  it  was  silent  as  to  the 
cargo.  A  vessel  and  Us  cargo  having  been  detained, 
Chief-Justice  Marshall  held,  that  an  action  could  be 
maintained  in  a  State  court  for  the  recovery  of  the  cargo, 
because  the  act  of  congress  gave  no  right  of  seizure  or 
detention  as  to  it;  but  that  an  action  for  a  vessel  torti- 
ously  seized  could  only  be  brought  in  the  Federal  courts ; 
and  that  the  officer  having  a  right  to  seize  for  a  supposed 
forfeiture,  the  question,  whether  that  forfeiture  had  been 
actually  incurred,  belonged  exclusively  to  the  Federal 
courts,  and  could  not  be  drawn  to  another  forum. — Slo- 
cum  v.  Mayberry,  2  Wheaton,  9.  The  opinion  says  : 
"Had  this  action  been  brought  for  the  vessel,  instead  of 
the  cargo,  the  case  would  have  been  essentially  different. 
The  detention  would  have  been  by  virtue  of-  an  act  of 
congress,  and  the  jurisdiction  of  a  State  court  could  not 
have  been  sustained.  But  the  action  having  been  brought 
for  the  cargo,  to  detain  which  the  law  gave  no  authority, 
it  w&3  triable  in  the  State  court." 

If  there  were  no  law  authorizing  conscription,  and  yet 
a  citizen  had  been  conscribed  into  the  army,  a  case  would 
be  presented  analogous  to  that  over  which  the  jurisdic- 
tion of  the  State  tribunal  was  maintained  in  Slocuni  v. 
Mayberry.  The  case  actually  presented  is  one  where 
there  is  a  law  authorizing  conscription,  and  it  is  alleged 
that  the  proper  officer  has  erred  in  the  execution  of  the 
law,  and  wrongfully  taken  a  citizen.  This  case  is  strictly 
analogous  to  that  o('  which,  it  is  declared,  the  State  court 
has  no  jurisdiction.  It  is  analogous  to  the  case  which 
would  have  been  presented,  if  a  collector  of  customs, 
authorized  to  seize  vessels  characterized  by  an  intent  to 
violate  the  law,  had  erred,  and  seized  one  not  so  charac- 
terized. In  reference  to  such  a  case,  the  opinion  above 
referred  to  declares,  that  the  question,  whether  the  for- 
feiture has  actually  been  incurred,  belongs  exclusively  to 
the  Federal    courts,   and   can   not    bo   drawn   to   another 


OP  ALABAMA.  693 


Ex  parte  Hill,  in  re  Arrnistead  v.  Confederate  States. 


lorum  ;  and  tbat  it  depends  upon  the  final  decree,  whether 
the  seizure  shall  be  deemed  rightful  or  tortious.  So,  in 
the  case  in  hand,  the  act  of  congress  empowers  the  officer 
to  coiisci'ibc  persons  characterized  by  certain  qualities  of 
age  and  capacity;  and  the  question,  whether  the  persons 
COnscribed  possess  those  qualities,  belongs,  so  far  as  the 
controlling  of  the  officer  is  concerned,  exclusively  to  the 
Confederate  courts,  and  can  not  be  drawn  into  another 
forum. 

By  the  supreme  court  of  the  United  States  it  has  been 
held,  that  a  mandamus,  to  compel  the  register  of  a  land- 
office  to  perform  an  official  duty  as  to  an  entry  of  the 
public  land,  could  not  be  issued  by  that  court,  because  it 
could  not  exercise  original  jurisdiction  over  such  a  sub- 
ject. It  was  held,  also,  that  the  writ  for  such  purpose 
could  not  be  issued  by  the  circuit  court  of  the  United 
States,  notwithstanding  the  judicial  power  of  the  United 
States  under  the  constitution  extended  to  such  a  case. 
This  latter  decision  is  put  upon  the  reason,  that  congress 
had  not,  by  the  judiciary  act,  delegated  the  judicial  power 
of  the  government  to  control  the  register  of  the  land- 
office  by  mandamus.  Although  it  thus  resulted,  that  no 
judicial  tribunal  of  the  United  States,  under  the  existing 
legislation,  could  give  to  an  it  jured  party  redress,  by  com- 
pelling an  officer  to  permit  an  entry  of  land,  it  was 
decided,  that  a  State  court  had  no  jurisdiction  over  the 
subject,  and  an  attempt  to  exercise  it  was  rebuked,  as 
"an  instance  of  the  growing  pretensions, of  some  of  the 
State  courts  over  the  exercise  of  the  powers  of  the  gen- 
eral government." — Mclntyre  v.  Wood,  7  Cranch,  .r<04  ; 
McClungv.  Siliiman,  2  Wheat.  369;  McCluog  v.  Silli- 
man,  6  Wheaton,  698.  See,  also,  Marbury  v.  Madison, 
1  Cr.  137;  Lytle  v.  Arkansas,  22  How.  193;  Barnard  v. 
Ashley,  18  How.  45.  The  question  is  the  same,  whether 
the  injury  results  from  an  error  of  omission  or  com- 
mission ;  and  the  principle  which  governs  in  the  former 
case,  must  apply  in  the  latter.  Other  cases  of  like  char- 
acter are  collated  by  Chancellor  Kent  iu  his  Commenta- 


694  SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  Stat. 

ries,  as  will  be  seen  by  reference  to  an  extract  from  that 
work  made  in  my  former  opinion. 

The  principle  which  I  assert  is  most  clearly  sustained 
and  forcibly  illustrated  by  the  eases  growing  out  of  the 
fugitive-slave  law.  The  act  of  1850  authorized  the  recla- 
mation of  fugitive  slaves,  by  the  procurement  of  a  warrant 
from  a  commissioner,  or  by  seizing  and  taking  the  fugi- 
tive before  a  commissioner,  whose  duty  it  was  to  grant  a 
certificate,  authorizing  his  removal  to  the  State  from 
which  he  escaped.— Brightley's  Digest,  29b',  §  8.  The 
proceeding  before  the  commissioner,  under  that  law,  was 
summary,  and  ex-parie,  and  might  be  based  upon  affidavit 
made  in  the  State  from  which  the  fugitive  escaped.  The 
courts  of  the  United  States  held,  that  a  State  court  had 
no  power  to  interfere  with  the  owner  or  marshal  engaged 
in  executing  that  law;  and  the  South  applauded  the 
decisions,  .as'  asserting  the  only  principle  by  which  an 
execution  of  the  law  could  be  had  in  a  community  made, 
by  fanatical  opposition  to  slavery,  unmindful  of  constitu- 
tional duty.  The  principle  asserted  in  those  cases,  arising 
under  the  fugitive-slave  act,  is  identical  with  that  which 
I  am  endeavoring  to  maintain.  It  is  a  well-established 
doctrine,  that  where  two  courts  have  concurrent  jurisdic- 
tion, the  exercise  of  the  jurisdiction  by  one  of  the  courts 
ousts  the  authority  of  the  other.  It  is  admitted,  there- 
fore, that  the  denial  to  a  State  court  of  jurisdiction  as  to 
a  particular  subject,  over  which  a  Federal  court  has  com- 
menced to  exorcise  its  authority,  affords  no  argument 
against  the  existence  of  a  concurrence  of  jurisdiction. 
If,  therefore,  it  were  true,  that  the  commissioner,  in  issu-  * 
ing  a  warrant-  for  the  seizure  of  a  fugitive  slave,  acted  as 
a  court,  and  exercised  a  part  of  the  judicial  power  of  the 
United  States,  the  negation  of  all  authority  in  the  State 
courts  to  interfere  with  the  execution  of  the  process  might 
be  referred  to  the  doctrine  just  stated.  But  the  commis- 
sioner who  issued  a  warrant  for  the  seizure  of  a  fugitive 
slave,  did  not  act  as  a  court,  or  exercise  judicial  author- 
ity. His  authority  was  in  its  nature  judicial,  or  quasi- 
judicial,  as  contradistinguished  from  judicial  authority. 


OF  ALABAMA.  695 


Ex  parte  Hill,  in  re  Armiatead  v.  Confederate  States. 

It  is  precisely  the  character  of  authority  which  the  enroll- 
ing officer  exercises  under  the  conscript  law,  when  he 
determines  the  question  of  liability  to  conscription. 

Chief-Justice  Pearson,  of  North  Carolina,  in  the  mat- 
ter of  Bryan,  before  the  supreme  court  of  that  State, 
argued  against  the  proposition,  that  the  officer  executing 
the  conscript  law  exercised  g^asi'-judicial  power,  upon  the 
ground  that  the  vesting  of  such  authority  in  an  officer 
would  break  dov\  n  the  distinction,  which  the  constitution 
carefully  draws,  between  the  executive  and  judicial 
departments  of  government.  In  this  argument,  it  seems 
to  me,  the  learned  chief-justice  overlooks  the  difference 
between  judicial  authority,  and  that  which  is  quasi-]\idi~ 
cial,  or  merely  judicial  in  its  nature.  The  bestowment 
of  any  part  of  the  judicial  authority  of  the  United  States, 
upon  an  officer  appointed  rmd  qualified  as  were  the  com- 
missioners who  were  empowered  to  issue  warrants  for  the 
seizure  of  fugitive  slaves,  aifd  to  authorize  their  return 
to  the  States  from  which  they  escaped,  would  have 
infringed  the  provision  of  the  constitution  which  pre- 
scribes the  mode  of  appointing  judicial  officers,  and  their, 
tenure;  and  the  proceedings  before  such  commissioners 
would  probably  have  been  violative  of  the  constitutional 
provision  on  the  subject  of  jury  trials.  The  constitution- 
ality of  the  fugitive-slave  law  can  only  be  maintained 
upon  the  ground,  that  the  commissioner  is  not  a  judicial 
officer,  and  docs  not  exercise  judicial  power.  Upon  that 
ground,  it  has  been  maintained  by  the  courts  of  the 
United  States,  and  by  some  of  the  Suite  courts. — Prigg 
y.  Commonwealth,  16  Peters,  622;  Opinion  of  Judge 
Cheves,  of  South  Carolina,  in  Rhodes'  case,  12  Niles' 
Register,  264;  Charge  of  Judge  Nelson  to  the  grand  jury 
for  the  southern  district  of  New  York,  1  Blatchford,  635, 
644  ;  Ex  parte  Robinson,  6  McLean,  355,  35'J  ;  Sims' 
case,  7  Cush.  302-808  ;  Ex,  parte  Jenkins,  2  Amcr.  Law 
Reg.  149;  Ex  parte  Gist,  26  Ala.  156.  See,  also,  United 
States  v.  Ferriera,  13  Howard,  40,  51 ;  Gaines  v.  Harvin, 
19  Ala.  498. 

1  make  the  following  extract  from  the  above  mentioned 


«96  SUPREME  COURT 

Ex  parte  Hill,  in  re  Armiatead  v.  Confederate  States. 


charge  of  Judge  Nelson  :  "It  has  been  made  a  question 
upon  this  act  [the  fugitive-slave  law],  whether  or  not  it 
was  competent  for  congress  to  confer  the  power  upou  the 
United  States  commissioners  to  carry  it  into  execution. 
As  the  judicial  power  of  the  Union  is,  by  the  constitu- 
tion, vested  in  the  supreme  court,  and  in  such  inferior 
courts  as  congress  may  from  time  to  time  establish,  the 
judges  oif  which  shall  hold  their  offices  during  good  beha- 
viour, it  has  been  supposed  that  the  power  to  execute 
the  law  must  be  conferred  upon  these  courts,  or  upon 
judges  possessing  this  tenure.  It  is  a  sufficient  answer 
to  this  suggestion,  that  the  same  power  was  conferred 
upon  the  State  .magistrates  by  the  act  of  1793;  and 
which,  in  Prigg  v.  Commonwealth  of  Pennsylvania,  was 
held  to  be  constitutional,  by  the  only  tribunal  competent 
under  the  constitution  to  decide  that  question.  *  *  * 
The  judicial  power  mentioned  in  the  constitution,  aud 
vested  in  the  courts,  means'  the  power  conferred  upon 
courts  ordained  and  established  by  and  under  the  consti- 
tution, in  the  strict  aud  appropriate  sense  of  that  term — 
courts  that  compose  one  of  the  three  great  departments 
of  the  government,  prescribed  by  the  fundamental  law, 
the  same  as  the  other  two,  the  legislative  and  the  execu- 
tive. But,  besides  this  mass  of  judicial  power  belonging 
to  the  established  courts  of  a  government,  there  is  no 
inconsiderable  portion  of  power  in  its  nature  judicial — 
gwasi-judicial — invested  from  time  to  time,  by  legislative 
authority,  in  individuals,  separately  or  collectively,  for  a 
particular  purpose  and  limited  time.  This  distinction  in 
respect  of  judicial  power  will  be  found  running  through 
the  administration  of  all  governments,  and  has  been  acted 
upon  in  this  since  its  foundation.  A  familiar  case  occurs 
in  the  institution  of  commissions  for  settliug  land  claims, 
and  other  claims  against  the  government.  *  *  *  * 
The  same  answer  may  be  given,  also,  to  the  objection 
founded  upon  the  seventh  amendment  of  the  constitution, 
which  provides  that,  in  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved.     *     *     *     The 


OF  ALABAMA.  697 


Ex  parte  Hill,  in  re  Armistead  v.  Com  federate  States. 


proceeding  contemplated  by  the  clause  of  the  constitution 
in  question,  is  not  a  suitat  common  law  within  the  mean- 
ing of  that  amendment.  It  settles  conclusively  no  right 
of  the  claimant  to  the  service  of  the  fugitive,  except  for 
the  purpose  of  the  removal  to  the  State  from  which  he 
or  she  fled  ;  no  more  than  the  proceeding  in  the  case  of  a 
fugitive  from  justice,  for  the  purpose  of  removal,  settles 
his  guilt.  The  question  of  right  to  the  service  in  the 
one  case,  and  of  guilt  in  the  other,  is  open  to  a  final  hear- 
ing and  trial  in  the  States  whence  the  fugitives  escaped." 

Language  equally  pointed  and  clear  will  be  found  by 
reference  to  the  other  authorities  above  referred  to.  Our 
own  court,  in  Gaines  v.  Ilarvin,  (supra,)  used  the  follow- 
ing language:  ,:We  not  understand  by  this  provision  in 
the  constitution,  that  it  was  the  intention  of  its  framers 
to  deny  to  the  legislature  the  power  to  confide  to  minis- 
terial officers,  who  do  not  constitute  a  part  of  the  judici- 
ary properly' so  called,  many  duties  involving  inquiries  in 
their  nature  judicial.  The  practice  of  this,  as  of  all  other 
governments  having  their  executive,  judicial,  and  legisla- 
tive departments  separate  and  distinct,  very  clearly  shows 
that,  in  the  administration  of  the  laws,  inquiries  partak- 
ing of  the  nature  of  judicial  investigations  are  confided 
to  persons  other  than  judges,  whose  acts  have  never  been 
questioned  on  constitutional  grounds.  Auditors  ami 
commissioners  appointed  in  certain  cases,  and  for  specific 
but  temporary  purposes;  commissioners  of  roads  and 
mue,  op  for  the  allotment  of  dower;  the  sheriff,  in 
executing  writs  of  inquiry  in  certain  cases;  so,  also,  the 
masters  in  chancery,  the  commissioner  of  patents  of  the 
United  States,  and  commissioners  under  the  late  act  of 
congress  in  regard  to  the  extradition  of  fugitive  slaves, 
all  perform  duties  in  their  nature  judicial;  but  we  have 
seen  uo  case  holding  their  acts  to  be  unconstitutional." 

If  it  were  true,  as  argued  by  Chief-Justice  Pearson, 
that  to  confer  on  the  secretary  of  war  and  his  subordi- 
nates the  power  of  determining  who  is  liable  to  conscrip- 
tion, would  be  "  totally  at  variance  with  every  principle 
of  our  government,"  then  the  fugitive-slave  law,  in  its 
45 


698  SUPREME  COURT 


Ex  parte  Hill,  in  re  Ar mis tead  v.  Confederate  Si 

bestowment  of  power  upon  the  commissioners,  Violated 

the  constitution  ;  and  the  law  investing  the  registers  of 
land-offices,  and  even*  department  of  the  government; 
with  gMon'-ja.dicid]  power,  is  unconstitutional.  The  au- 
thorities which  I  have  cited,  as  well  as  those  from  which 
I  have  made  extracts,  fully  illustrate  and  sustain  the  dis- 
tinction which  I  have  drawn,  and  I  need  not.  further 
discuss  the  point.  I  think  it  can  not  he  controverted,  bv 
any  one  who  respects  judicial  precedents  and  fair  argu- 
ment, that  the  commissioner  who  issued  a  warrant  for 
the  arrest  of  a  fugitive  slave,  was  no  judge,  held  no  court, 
did  not  exercise  judicial  authority,  issued  no  pro 
returnable  to  a  court,  and  really  put.  forth  no  judicial  pro- 
cess ;  notwithstanding,  in  the  careless  use  of  language, 
his  process  may  have  been  so  characterized.  The  com- 
missioner was  as  much  a  ministerial,  or  executive  otiicer, 
as  the  officer  charged  with  the  execution  of  the  conscript 
law  ;  and  their  powers  are  alike  quasi-judicial,  as  distin- 
guished from  judicial,  in  their  character.  Upon  what 
ground,  then,  can  it  be  maintained,  that  the  State  courts 
can  interfere  with  the  execution  of  the  conscript  law.  and 
yet  were  without  power  to  interfere  with  the  enforcement 
of  the  fugitive-slave  act? 

I  proceed  to  notice  some  of  the  decisions  and  rulings 
made  in  the  non-slaveholding  States  by  the  judges  who 
were  endeavoring  to  maintain  the  supremacy  of  the  con- 
stitution and  laws  of  the  United  States,  opposed  and  re 
sisted  with  a  boldness  and*  ingenuity  without  a  parallel 
in  the  history  of  the  country.  Judge  ISTelson,  of  the  su- 
preme court  of  the  United  States,  in  the  charge  to  the 
grand  jury  already  referred  to,  used  the  following  lan- 
guage: "There  have  been  difierentopinions  entertained  by 
the  judges  of  the  States  as  to  their  power  under  this  writ 
[the  writ  of  habeas  corjms']  to  decide  upon  the  validity  of 
a  commitment  or  detainer  by  the  authority  of  the  United 
States.  But  those  who  have  been  inclined  to  entertain 
this  jurisdiction  admit  that  it  can  not  be  upheld,  where 
it  appears  from  the  return  that  the  proceedings  belonged 
exclusivel}'  to  the  cognizance  of  the  general  government. 


OF  ALABAMA. 0*9 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


This  necessarily  results  from  the  vesting  of  the  judicial 
power  of  the  Union  in  the  Federal  courts  and  officers,  and 
from  the  iourth  article  of  the  constitution,  which  declares 
that  "the  constitution  and  laws  of  the  United  States, 
which  shall  he  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  he  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  hind,  and 
the  judges  in  every  State  shall  lie  hound  thereby,  an}- 
thing  in  the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding."  If  the  exclusive  power  to  exe- 
cute the  law  :s  in  the  Federal  judiciary,  aud  the  act  is  to 
be  regarded  as  the  supreme  law  of  the  land,  and  to  be 
obeyed  as  such,  it  is  difficult  to  see  by  what  right  or  au- 
thority its  execution  can  be  interfered  with,  through  the 
agency  of  this  writ,  by  State  authorities.  Any  such  in- 
terference would  seem  to  beadirect  infraction  of  the  con- 
stitution. It  is  proper  to  say,  in  order  to  guard  against 
misconstruction,  that  I  do  not  claim  that  the  mere  fact  of 
the  commitment  or  detainer  of  a  prisoner  by  an  officer  of 
the  Federal  government  bars  the  issuing  of  the  writ,  or 
the  exercise  of  power  under  it.  Far  from  that.  Those 
officers  may  be  guilty  of  illegal  restraints  of  the  liberty 
of  the  citizen,  the  same  as  others.  The  right  of  the  State 
authorities  to  inquire  into  such  restraints  is  not  doubted ; 
and  it  is  the  duty  of  the  officer  to  obey  the  authority  by 
making  a  return.  All  that  is  claimed  or  contended  for 
is,  that  when  it  is  shown  that  tin)  commitment  or  detainer 
is  under  the  constitution,  or  a  law  of  the  United  States, 
or  a  treaty,  the  power  of  the  State  authority  is  at  an  end, 
and   any  other   proceeding    under  the  writ    i  //"/>. 

judicc  and  void.  In  such  a  '';vse — that  is,  when  tliQ  prisoner 
is  in  fact  held  under  process  issued  from  a  Federal  tribunal, 
under  the  constitution  or  a  law  of  the  Unit  -  3  ■-.  or 
a  treaty — it  is  the  duty  of  the  officer  not  to  m  up 

or  allow  him   to   pass  from  his  hands  at  any  f  the 

proceedings." 

Judge  McLean,  one  of  the  judges  of  the  sr.preme 
court  of  the  United  States,  in  reference  to  a  case  wfyere 
aKentuckian,  the  owner  of  slaves,  seized  them  in  Michi- 


7  00  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

gan  without  a  warrant,  held,  that  the  owner  having  a  war- 
rant issued  by  a  commissioner,  or  having  seized  his  slaves 
in  the  absence  of  a  warrant  without  a  breach  of  the  peace, 
upon  the  return  of  either  of  those  facts,  the  authority  of 
the  State  court  under  a  writ  of  habeas  corpus  would  cease, 
because  it  would  then  appear  that  the  prisoner  was  held 
under  the  authority  of  the  constitution  and  laws  of  the 
United  States. — Norris  v.  Newton,  5  McLean,  82. 

A  case  is  reported  in  5th  Am.  Law  Reg.  659,  September, 
1857,  (Ex  parte  Sifford  Marshall  et  a?.,)  which  was  decided 
in  an  able  opinion  by  Judge  Leavitt  in  the  district  court 
of  Ohio.  In  that  case,  some  persons  had  resisted  the  mar- 
shal in  the  arrest  of  a  fugitive  slave.  Those  persons  were 
arrested  under  a  warrant  upon  the  charge  of  resisting  the 
officer.  An  attempt  was  made  to  take  the  prisoners  out 
of  the  custody  of  the  marshal  by  virtue  of  a  writ  of  ha- 
beas, coyy  us  issued  by  a  State  judge.  For  an  assault  and 
batter}7  committed  in  resisting  this  attempt  the  marshal 
and  his  posse  were  arrested  under  a  warrant  issued  by  a 
justice  of  the  peace.  A  habeas  corpus  was  obtained  from 
the  district  judge  ;  and  he,  in  passing  upon  the  power  of 
a  State  court  to  interfere  with  the  custody  of  prisoners 
held  by  the  marshal  under  a  warrant,  used  the  following 
language :  "The  doctrine  seems  now  to  be  settled,  that  a 
State  judge  has  no  jurisdiction  to  issue  a  writ  of  habeas 
corpus  for  a  prisoner  in  the  custody  of  an  officer  of  the 
United  States,  if  the  fact  of  such  custody  is  known  to 
him  before  issuing  the  writ.  And  it  is  well  settled,  that 
if,  upon  the  return  of  the  writ,  it  appears  the  prisoner  is 
in  custody  under  the  authority  of  the  United  States,  the 
jurisdiction  of  the  State  judge  is  at  an  end,  and  all  further 
proceedings  by  him  are  void."  The  same  judge,  in  an 
opinion  of  great  ability  in  another  case,  in  1856,  alter  ex- 
amining the  authorities,  held  ,as  follows:  "If  judicial  de- 
cisions are  entitled  to  any  consideration,  it -is  clearly  es- 
tablished that,  though  it  maybe  competent  for  a  State 
judge  to  issue  the  writ  of  habeas  corpus  in  a  case  of  im- 
prisonment under  the  authority  of  a  law  of  the  United 
States,  when  the  fact  is  made  known  to  him  his  jurisdic* 


OF  ALABAMA.  761 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


tion  ceases,  and  all  subsequent  proceedings  by  him  are 
void." — Ex  parte  Robinson,  Am.  Law  Reg.  for  August, 
1856,  vol.  4,  p.  617  ;  Ex  parte  Robinson,  6  McLean,  85. 

In  the  celebrated  Sims'  case,  (7  Cash.  285,)  the  supf< 
court  of  Massachusetts  declined  to  issue  a  writ  of  h 
corpus  for  a  fugitive  slave,  claimed  in  the  petition  to  be 
free,  who  had  been  arrested  under  a  warrant  issued  by  a 
commissioner.  The  court,  in  an  opinion  delivered  by- 
Chief-Justice  Shaw,  while  admitting  the  general  proposi- 
tion, that  a  State  court  ''can  not  issue  a  writ  of  habi  r 
pus  to  bring  in  a  party  held  under  color  of  process  from 
the  courts  of  the  United  States,  or  whose  services  and 
the  custody  oi  whose  person  are  claimed  under  authority 
derived  from  tb,e  laws  of  the  United  States,"  denies  the 
universality  of  the  proposition,  and  instances  the  cases  of 
soldiers  and  sailors  held  by  military  and  naval  officers 
under  enlistments  complained  oT  as  illegal  and  void,  as 
exceptions.  Th'e  distinction  intimated  can  only  be  main- 
tained upon  the  supposition,  that  the  principle  involved, 
would  yield  at  the  judicial  will  to  suit  the  wants  of  the 
case. 

Finally,    the.    subject   was  presented    to    the    supreme 
court  of  the  United  States,  in  the  two  cases  of  Ableman 
v.  Booth,  and  the  United  States  v.  Booth,  in  which  Chief- 
Justice  Taney  delivered  the  opinion  of  the  court,  which 
ported  in  "21  Howard.     In  one  of  those  eases,  the  Wis- 
consin court  discharged  Booth  from  imprisonment  under 
a  commitment  by  a  commissioner  for  resisting  the  execu- 
tion of  the  fugitive-slave  iaw.     Tu  the  other,  the  court  of 
the  same  State  discharged  the  same  person  from  inipr 
ment  under  a  judicial  conviction  for  the   same  offense. 
The  supreme  court  of  the  United  States,  as  will    be 
by  reference  to  pp*  528-524,  placed  its  decision  upon  the 
ground,  that  a  State  court  can  not  interfere  with  the  cus- 
tody of  one  held  under  the  authority  of  the  Unit- 
After  conceding  the  right  of  a.  State  court  to  ascertain  by 
what  authority  a  prisoner  within  the  confines  of  its  territo- 
rial jurisdiction  is  held,  the  court  uses  the  loilowin. 
phatic  language:  "But  alter  the  return  is  made,  and  the 


702  SUPREME  COURT 


parte  Mill,  in  re  Armistead  v.  Confederate  Sfci 


State  judge  or  court  judiciallyjapprised  that  the  party  is  in 
custody  under  the  authority  of  the  United  States,  they  can 
proceed  no  further.  They  then  know  that  the  prisoner  is 
within  the  dominion  and  jurisdiction  of  another  government, 
and  that  m  ither  the  writ  of  habeas  corpus,  nor  any  oilier  pro- 
acts  issued  under  State  authority,  can  pass  over  the  line  of  di- 
vision between  the  tiro  sovereignties.  He  is  then  within  the 
dominion  and  exclusive  jurisdiction  of  the  United  Stat. 
ii'  he-has  committed  an  offense  against  their  laws,  their 
tribunals  alone  can  punish  him.  If  he  is  wrongfully  im- 
prisoned, their  judicial  tribunals  can  release  him,  and  af- 
ford him  redress.  And  although,  as  we  have  said,  it  is 
the  duty  of  the  marshal,  or  other  person  holding  him,  to 
make  known  by  a  proper  return  the  authority  under  which 
he  detains  him,  it  is  at  the  same  time  imperatively  his 
duty  to  obey  the  process  of  the  United  States,  to  hold  the 
prisoner  in  custody  uncrbr  it,  and  to  refuse  obedience  to 
the  mandate  or  process  of  any  other  government.  And 
consequently  it  is  his  duty  not  to  take  the  prisoner,  nor 
suffer  him  to  be  taken,  before  a  State  judge  or  court,  upon 
a  habeas  corpus  issued  under  State  authority.  No  State 
judge  or  court,  after  they  arc  judicially  informed  that  the 
party  is  imprisoned  under  the  authority  of  the  United 
States,  has  any  right  to  interfere  with  him,  or  require 
him  to  be  brought  before  them.  And  if  the  authority  of 
a  State,  in  the  form  of  judicial  process  or  otherwise,  should 
attempt  to  control  the  marshal,  or  other  authorized  offic 
or  agent  of  the  United  States,  in  any  respect,  in  the  cus- 
tody of  his  prisoner,  it  would  be  his  duty  to  resist  it,  and 
to  call  to'  his  aid  any  force  that  might  be  necessary  to 
maintain  the  authority  of  law  against  illegal  interference. 
No  judicial  proqess,  whatever  form  it  may  assume,  can 
have  any  lawful  authority  outside  of  the  limits  of  the 
jurisdiction  of  the  court  or  judge  by  whom  it  is  issued; 
and  an  attempt  to  enforce  it  beyond  these  boundaries  in 
nothing  less  than  lawless  violence." 

It  has  been  objected,  to  the  authority  of  this  opinion, 
first,  that  the  court  and  the  great  jurist  who  delivered 
it  did  not  really  mean  what  is  said  ;  and  secondly,  that  it 


OF  ALABAMA.  703 


Ex  parte  Hill,  in  vo  Arrnistead  v.  Confederate  States. 


must  at  all  events  be  treated  an  an  obiter  dictum — as  the 
opinion  of  an  able  lawyer  on  a  question  not  presented  by 
the  facts  before  the  court.  In  reply  to  the  former  objec- 
tion, I  have  only  to  say,  that  when  the  ease  of  Ableman 
v.  Booth  was  decided,  the  supreme  court  of  the  United 
States,  with  its  nine  judges,  in  the  high  qualities  of  lofty 
integrity'and  profound  learning,  had  no  superior,  if  it  had 
an  equal  ;  and  it  is  incofleeivable  that  the  language  of  so 
Important  an  opinion  should  have  obtained  the  unani- 
mous sanotion  of  such  a  tribunal,  unless  it  afforded  a  true 
index  to  its  opinions.  The  second  objection  is  as  ground- 
less ;u  the  first.  The  deoision  of  the  case  in  which  there 
had  been  a  conviction  and  a  sentence,  might  have  been 
put  upon  the  principle,  that  the  judgments  of  judicial 
tribunals,  within  the  area  of  their  jurisdiction,  arc  con- 
clusive. In  the  other  case,  where  there  was  simply  an 
arrest  and  commitment  by  authority  of  a  commissioner, 
that  proposition  would  not  have  decided  the  case;  for  the 
authorities  hereinbefore  cited  show,  that  it  is  now  the  es- 
tablished doctrine,  however  mueh  it  may  have  been  con- 
troverted in  the  past,  that  the  commitment  of  one  to 
answer  before  a  court  for  an  offense  does  not  involve  the 
of  judicial  power.  Although  an  often der  may 
have  been  committed  by  a  commissioner,  to  answer  a 
charge,  the  truth  of  the  accusation  may  be  investigated 
on  habeas  corpus  issued  by  a  judge  of  a  Federal  court,  and 
also  I  e,  if  he  has  a  concurrence  of  jurisdic- 

tion, rlicularly  the  opinion  of  Judge  drier  in  the 

»f  Jenkins  and  Crosson,  reported  in  the  Amer.  Law- 
fur  January,  18M,  p.  144.     In  order  to  cover  both 
.  it  was,  therefore,  necessary  for  the   supreme  court 
of  the  United  States  to  find  some  broader  principle;  and 
.ms  to  me  that  they  have  laid  down  the,  only  princi- 
ple which  could  have  controverted  the  State  jurisdiction 
in  both  casi 

But  it  may  be  said,  that  the  court  should  have  restricted 

'ctriue  to  the  very  facta  of  the  ease,  and,  instead  of 

aanouu  in"  the  broad  and  comprehensive  principle,  that 

the  jurisdiction  of  the  general  and  State  government.-  are 


704  SUPREME  COURT 

Ex  parte  Hill,  in  re  Arrnistead  v.  Confederate  States. 

as  distinct  as  if  separated  by  visible  marks — that  neither 

can  cross  the  line  which  divides  their  jurisdictions,  and 

that,  therefore,  a  State  tribunal  can  not  interfere  with  the 

custodj^of  one  held  uuder  the  authority  of  the  United  States 

— should  h  ave  'emasculated   the  principle,  by  adding  the 

proviso,  that  its  application   should   be  confined  to  cases 

of  imprisonment   under  the  warrant  of  a  commissioner, 

... 
or  under  a  conviction  in  a  Federal  court.     It  is  not  riffht 

to  denounce  the  statement  of  a  principle  as  an  obiter  dic- 
tum, because  it  is  large  enough  to  cover  other  cases  than 
those  decided.  To  do  so,  would  bauish  from  the  bench 
the  assertion  of  those  comprehensive  and  leading  doc- 
trines which  give  stability  and  harmony  to  jurisprudence, 
and  require  the  judicial  mind  always  to  present  principle 
narrowed  down  by  the  facts  of  the  particular  case,  and 
therefore  unfitted  to  be  a  rule  of  conduct  in  the  affairs  of 
life.  The  great  doctrine  stated  by  the  supreme  court  of 
the  Unked  States  was  applicable  to  the  cases  decided,  and 
controlled  their  decision.  It  is,  therefore,  not  an  obiter 
dictum. 

As  the  result  of  my  long  review  of  the  decisions  grow- 
ing, directly  and  indirectly,  out  of  the  fugitive-slave  law, 
I  confidently  assume,  that  the  principle  which  I  have  as- 
serted is  fully  supported  by  them,  and  that  it  has  the  sanc- 
tion of  the  supreme  court  of  the  United  States,  which, 
under  the  old  system  of  government,  would  have  been  a 
commanding  authority.  I  admit,  as  I  have  heretofore 
done,  that  many  State  decisions — in  New  York,  New 
Hampshire,  Massachusetts,  Pennsylvania,  Maryland,  and 
Virginia — maintained  the  power  of  State  courts  to  inter- 
fere with  the  custody  of  persons  held  under  the  authority 
of  the  United  States.  Many  of  those  cases  are  noticed  in 
my  former  opinion,  and  they  are  collated  by  Ilurd  in  his 
work  on  Habeas  Corpus.  All  the  State  courts  did  not 
decide  the  same  way.  •The  question  seems  to  have  been 
decided  both  ways  in  Georgia.  So,  also,  the  decisions 
were  contradictory  in  South  Carolina. — Rhodes'  < 
12  Nilcs'  R.  264;  In  the  matter  of  Merritt,  5  Amer.  Law 
Journal,  497.     In  the  former  of  those  cases,  Judge  Cheves 


OF  ALABAMA.  705 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States, 
delivered  an  able  opinion,  controverting  the  State  juris- 
diction. In  the  latter,  Judge  Nott  recognized  the  juris- 
diction, without  noticing  the  point.  So,  also,  in  North 
Carolina,  the  jurisdiction  was  exercised  without  any  notice 
or  discussion  of  the  question. — Ex  parte  Mason,  1  Mur. 
336.  In  New  Jersey,  Judge  Southard,  speaking  for  the 
court,  avoids  the  question  of  jurisdiction  ;  but  for  himself 
remarks,  that  it  would  require  a  "great  struggle  of  feel- 
ing and  judgment  for  him  to  ever  arrive  at  the  point 
where  he  would  be  prepared  to  deny  the  State  jurisdic- 
tion."— State  v.  Brearley,  2  Southard,  555. 

In  the  Federal  courts,  the  jurisdiction  of  the  State  courts 
was  never  acknowledged.  In  Veremaitr's  case  it  was  ex- 
pressly denied. — Hurd  on  Habeas  Corpus,  197.  In  the 
case  of  Keeler,  (Hempstead's  R.  306,)  it  was  doubted,  if 
not  denied.  No  American  law-writer  has  conceded  the 
jurisdiction,  except  Mr.  Hurd,  whose  book  was  written, 
in  Ohio,  in  1858,  during  the  struggle  of  the  State  courts, 
in  the  non-slaveholding  States,  to  defeat  the  enforcement 
of  the  fugitive-slave  act;  and  who  exhibits  his  own  pro- 
clivities, by  the  expression  of  doubts  as  to  the  constitu- 
tionality of  that  act — pp.  648,  640.  Chancellor  Kent  as 
a  judge  iii  New  York  denied  the  State  jurisdiction,  and 
afterwards  in  his  commentary  only  yielded  the  point  to  a 
later  decision  in  that  State  so  far  as  to  Bay,  "the  question 
was  therefore  settled  in  favor  of  a  concurrent  jurisdiction 
in  that  case,  and  there  has  been  a  similar  decision  and 
practice  by  the  courts  of  other  States";  but  there  is  no 
evidence  that  he  ever  abandoned  the  views  expressed  by 
him  from  the  bench. — Ferguson's  case,  9  Johns.  H.  239; 
In  the  matter  of  Stacy,  10  ib.  328;  1  Kent's  Com.  401. 
Sergeant,  in  his  work  on  Constitutional  Law,  (p.  282,) 
treats  the  question  as  unsettled,  and  contents  himself 
with  giving  the  decisions  on  both  sides  of  it.  In  Duer's 
Treatise  on  Constitutional  Jurisprudence,  (p.  180,)  pub- 
lished in  1856,  the  subject  is  thus  disposed  of:  "Under 
what  circumstances,  and  how  far,  the  judges  of  the  State 
courts  have  power  I  corpus  and  decide  on 

the  validity  of  a  commitment  or  detainer  under  the  au- 


706  SUPREME  COURtf 

parte  Hill,  in  re  Armistead  v.  Confederate  States. 


th'ority  of  the  national  government,  are  questions  which 
have  been  variously  determined  in  the  States,  and  never 
definitely  settled  in  the  supreme  court  of  the  United 
States,  where  the  ultimate  right  of  determining  them  re- 
sides." In  1842,  Conkling's  Treatise  on  the  Juris- 
diction of  the  Federal  Courts  issued  from  the  press. 
That  work,  in  reference  to  this  subject,  employs  the  fol- 
lowing language:  "Whether,  and  if  so  under  wliat  cir- 
cumstances, the  judges  of  State  courts  can  rightfully  ex- 
ercise this  power,  are  questions  which  have  been  variously- 
decided  in  the  courts  of  the  several  States.  It  seems  .to 
have  been  agreed  on  all  hands,  however,  that,  admitting 
the  power  to  exist,  it  ought  to  be  exercised  with  great 
caution  and  reserve;  and  among  the  advocates  of  the 
power  it  has  generally  been  supposed,  that  it  ought  to  be 
limited  to  the  inquiry,  whether  the  court  or  officer,  in 
virtue  of  whose  process  or  order  the  prisoner  was  con- 
fined, had  jurisdiction  of  the  case."  In  this  unsettled 
condition  the  supreme  court  of  the  United  States  found 
the  question  in  1858,  when  it  decided  the  case  of  Able- 
man  v.  Booth.  That  decision,  on  account  of  the  high 
character  for  learning,  integrity  and  patriotism  of  the 
judges,  the  relation  in  which  the  court  stood  to  other  tri- 
bunals, and  the  sound  reasoning  which  it  developed,  ought 
to  have  settled  the  question  ;  and  in  all  probability  the 
point  would  never  again  have  been  agitated,  if  we  had 
continued  to  occupy  our  former  relations  to  the  United 
States.     Tenvpora  mutardur,  nos  el  mutamitr  v>,  tills. 

Ingenuity  may  suggest  the  reply  to  my  argument,  that 
the  conscript  law  bestows  no  authority  to  enroll  those 
who  are  exempt  for  any  of  the  reasons  specified  in  the 
law;  and  that,  therefore,  the  officer  who  visits  conscrip- 
tion on  one  not  liable,  does  not  act  under  the  authority 
of  the  government  of  the  Confederate  States.  To  this 
reply  I  rejoin,  that  there  is  a  necessarily  implied  authority 
in  the  officer  to  determine  who  are  amenable  to  conscrip- 
tion; for  how  can  lie  enroll  those  liable,  and  exempt 
those  not  liable,  without  determining  who  belong  to  the 
respective  classes?     The  officer,  in  ascertaining  who  are 


OF  ALABAMA.  707 


Ex  parte  Hill,  in  re  Armistoad  v.  Confederate  States. 


within  the  age  of  conscription,  as  clearly  exercises  an 
authority  bestowed  by  act  of  congress,  as  he  does  in  en- 
rolling a  man  of  undisputed  liability.  A  youth  is  pre- 
sented to  an  enrolling  officer — his  age  is  doubtful:  the 
law  commands  the  officer  to  enroll  him,  if  he  is  eighteen 
years  of  age;  the  officer  does  not  know  whether  he  is  of 
that  age;  must  he,  because  he  is  thus  uninformed,  dis- 
charge the  young  man  ?  He  must  do  so,  unless  lie  has 
authority  under  the  law  to  investigate  the  question  of 
age;  for,  as  an  officer,  he  can  do  nothing  for  which  the 
law  does  not  afford  a  warrant.  The  authority  to  deter- 
mine the  question  of  liability  to  conscription  is  necessa- 
rily involved  in  the  power  to  conseribc;  for  there  can  be 
no  conscription  without  the  ascertainment  of  its  proper 
-subjects.  An  officer  must  have  the  power  necessary  to 
discharge  his  duty.  Certainly  the  officer  may  err:  so 
may  all  the  officers  of  the  general  government — the  col- 
lector of  customs,  the  post-master-general,  the  commis- 
sioner who  commits  persona  held  to  have  violated  the 
criminal  law,  and  all  others  who  exercise  powers  which 
concern  the  pecuniary  interest,  the  property,  or  the  lib- 
erty of  the  citizen;  yet  it  will  scarcely  be  contended,  that 
it  is  the  province  of  a  State  tribunal  to  visit  a  controlling 
authority  over  those  officers,  in  order  to  coerce  the  cor- 
rection of  their  errors.  One  government  cannot  thus 
control  the  officers  of  a  co-ordinate  government.  If  it 
can,  the  two  governments  arc  not  co-ordinate  and  equal 
within  their  proper  spheres— the  latter  is  subordinate  and 
inferior  to  the  form 

If  the  officer  charged  with  the  execution  of  the  con- 
Bcrrpt  law  has  no  authority  to  decide  the  question  of  lia- 
bility to  conscription,  it  is  competent  for  any  State  officer, 
authorized  to  issue  a  writ  of  habeas  corpus,  to  treat  every 
llraent  as  a  nullity,  and  to  discharge  every  man  en- 
rolled, when  in  his  judgment  there  was  not  a  liability. 
Tie'  officer  b  liable  to  a  conviction    foi  im- 

minent, if  a  ourt  differs   from   him   upon  the 

tion  which  he  is  bound  to  decide.     He  may  l.ave  de- 
cided and  acted  precisely  as  he  thought  to  be  right,  and 


708 SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

as  the  judicial  tribunals  of  the  government,  whose  officer 
he  was,  would  approve;  and  yet  he  may  be  punished  as 
a  criminal,  because  some  judicial  officer  of  another  gov- 
ernment entertained  a  different  opinion.  An  army  raised 
in  a  particular  State,  and  deemed  liable  to  conscription 
by  the  executive  and  judicial  departments  of  the  Confed- 
erate government,  and  of  the  State  where  it  was  raised, 
may,  upon  reaching  some  other  portion  of  the  Confed- 
eracy, find  some  officer,  clothed  by  the  State  law  with 
power  to  issue  the  habeas  corpus,  whose  peculiar  views  will 
lead  him  to  disband  the  army  in  a  day.  The  tribunals  of 
a  single  State,  differing  from  those  of  the  Confederate 
States  and  of  every  other  State,  may  utterly  subvert  the 
application  of  the  power  to  raise  armies  to  that  *  State. 
They  may  even  invite  the  people  from  other  States,  by 
peculiar  rulings,  to  fly  to  their  jurisdiction  as  a  shelter 
from  the  enforcement  of  the  law.  It  is  to  be  apprehended 
that  our  government  will  not  be  permitted  to  pass  through 
its  infancy,  without  experiencing  some  or  all  of  the  ruin- 
ous consequences  which  are  (as  I  believe)  probable  results 
of  the  proposition,  that  State  courts  have  the  jurisdiction 
claimed  for  them. 

Congress  has  power,  granted  by  the  constitution,  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus,  wheD, 
in  cases  of  rebellion  or  invasion,  the  public  safety  may 
require  it. — Constitution  of  the  United  States,  art.  I, 
§  9,  "j[  2;  Constitution  of  the  Confederate  States,  art.  I, 
§  9,  T[  3.  An  unavoidable  sequence  of  the  proposition, 
that  there  is  a  concurrent  jurisdiction  in  the  State  tribu- 
nals, in  reference  to  the  custody  of  persons  held  under 
the  authority  of  the  general  government,  is,  that  the  sus- 
pension by  congress  applies  to  State  courts  and  judges. 
Upon  the  hypothesis  of  the  concurrent  jurisdiction,  the 
suspension  would  be  utterly  vain  and  nugatory,  unless  it 
affected  State  tribunals;  for,  if  it  were  restricted  to  the 
tribunals  of  the  general  government,  an  applicant  for  re- 
lief under  the  writ  would  only  find  it  necessary  to  address 
his  prayer  to  a  judicial  officer  of  the  State,  instead  of  the 
Confederate  States.     I  am   not  prepared  to  admit,  that 


OF  ALABAMA.  709 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

the  franura  of  the  constitution  ever  intended  to  subject 
the  use  of  the  great  remedial  writ  of  habeas  corpus  by  the 
States  to  the  control  of  another  government.  Habeas 
corpus  is  the  instrument  by  which  the  State  tribunals  re- 
dress wrongs,  varied  and  extensive  in  their  character, 
which  can  not  affect  the  general  government,  either  in 
peace  or  in  war,  in  times  of  domestic  quietude  or  rebel- 
lion. I  do  not  think  that  the  convention  which  framed 
the  constitution  aimed  to  bestow  any  authority  to  inter- 
fere with  the  use  of  that  writ  by  the  State  judges.  The 
object,  of  the  States  was  to  delegate  only  such  powers  as 
would  enable  the  government  "to  do  that  which  either 
could  not  be  done  at  all,  or  as  safely  and  well  done  by 
them  as  by  a  joint  government  of  all."  In  the  clause  in 
reference  to  habeas  corpus,  there  is  a  great  departure  from 
that  prime  object,  if  it  be  understood  to  apply  to  the  em- 
ployment of  that  writ  by  the  State  tribunals. 

As  the  writ  of  habeas  corpus  was  never  suspended  by 
the  government  of  the  United  States  before  the  secession 
of  the  southern  States,  we  can  find  in  its  annals  no  deci- 
sion upon  the  exact  question  in  hand.  Nevertheless,  I 
think  Chief-Justice  Marshall  and  Chancellor  Kent  have 
announced  a  principle  irreconcilable  with  the  supposition 
that  congress  can  suspend  the  issue  of  the  writ  by  State 
judges.  The  former  of  those  two  eminent  jurists,  in 
Barron  v.  The  Mayor,  &o.,  of  Baltimore,  (7  Peters,  247,) 
used  the  following  language:  "The  constitution  was  or- 
dained and  established  by  the  people  of  the  United  States, 
for  their  own  government,  and  not  for  the  government  of 
the  individual  States.  Each  State  established  a  constitu- 
tion for  itself,  and  in  that  constitution  provided  such  lim- 
itations and  re^triclions  on  the  powers  of  its  particular 
government  as  they  supposed  best  adapted  to  their  situa- 
tion, and  best  calculated  To  promote  their  interests.  The 
powers  they  conferred  upon  the  government  were  to  be 
exercised  by  itself;  and  the  limitations  on  power,  if  ex- 
pressed in  general  terms,  are  naturally,  and  we  think 
ssaHly,  applicable  to  the  government  created  by  the 
instrument.     They  arc  limitations  of  power  granted  in 


710  SUPREME  COURT 


Ex  parte  Hill,  in  re  Armi.stead  v.  Confederate  Stales. 


the  instrument  itself;  not  of  distinct  governments,  framed 
by  different  persous,  and  for  different  purposes."  In  the 
same  opinion,  the  principle  is  distinctly  stated,  that  no 
limitation  of  the  action  of  the  government  of  the  United 
States  on  the  people  would  apply  to  the  State  govern- 
ments, unless  expressed  in  terms;  and  that  in  every  in- 
hibition in  the  0th  and  10th  articles  of  the  constitution, 
intended  to  act  on  State  power,  words  are  employed  which 
directly  express  that  intent.  Chancellor  Kent's  views 
upon  the  same  subject  are  thus  expressed:  ''As  the  con- 
stitution of  the  United  States  was  ordained  and  estab- 
lished by  the  people  of  the  United  States  for  their  own 
government  as  a  nation,  and  not  for  the  government  of 
the  individual  States,  the  powers  conferred,  and  the  limi- 
tations on  power  contained  in  that  instrument,  are  appli- 
cable to  the  government  of  the  United  States,  and  the 
limitations  do  not  apply  to  the  State  governments  except 
in  express  terms.  *  *  The  people  of  the  respective 
States  are  left  to  create  such  restrictions  on  the  exercise 
of  the  power  of  their  particular  governments,  as  they  may 
think  proper;  and  restrictions  by  the  constitution  of  the 
United  States,  on  the  exercise  of  power  by  the  individual 
States,  in  cases  not  consistent  with  the  objects  and  policy 
of  the  powers  vested  in  the  Union,  are  expressly  enumer- 
ated."— See,  also,  In  the  matter  of  Smith,  10  Wend.  449; 
Livingston  v.  Mayor  of  N.  Y.,  8  ib.  85-100;  Barker  v. 
People,  3  Cow.  G36-700;  Murphy  v.  People,  2  Cow.  315- 
320  ;  ]NTolcs  v.  State,  24  Ala.  672-690 ;  Boring  v.  Williams, 
17  Ala.  510-516. 

While  the  provision  of  the  constitution  implies  an  au- 
thority to  suspend  the  privilege  of  the  writ  of  habeas  cov- 
jms,  it  restricts  that  authority  to  occasions  when,  in  cases 
of  rebellion  and  invasion,  the  jtfublic  safety  may  require 
it;  and  it  likewise  restricts  judicial  authority  by  a  pro* 
hibition  to  relieve  under  the  writ,  when  there  is  a  consti- 
tutional suspension.  I  can  not  perceive  how  this  limita- 
tion of  judicial  authority  can,  consistently  with  the  princi- 
ple stated  by  Chief-Justice  Marshall  and  Chancellor  Kent, 
be  made  to  apply  to  the  judicial  department  of  a  State 


OF  ALABAMA.  711 


Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


government.  A  theory,  which  necessitates  the  imposi- 
tion of  such  a  restriction  upon  the  authority  and  power 
of  State  judges,  cai>  not,  it  seems  to  me,  be  corn 

If  it  be  understood  that  the  Slate  judges  can  not  dis- 
charge persons  heM  under  the  authority  of  the  Confe  'cr- 
ate States,  perfect  harmony  in  the  operation  of  the  two 
systems  is  preserved.  Neither  the  States  collide  with  the 
genera]  government,  when  it,  in  the  exercise  of  its  pow- 
ers, take  a  per  sou  into  custody;  nor  the  latter  with  the 
States,  when  exercising  their  proper  judicial  functions. 
And  the  States  will  be  left,  as  if  was  intended  they  should, 
in  the  undisturbed  exercise  of  powers,  extending  "to  all 
the  objects  which,  in  the  ordinary  course  of  affairs,  con- 
cern the  lives,  liberties,  and  properties  of  the  people,  and 
the  internal  order,  improvement  and  prosperity  of  the 
State/ —Federalist,  No.  XLV.  216. 

The  privilege  of  interfering  with  the  general  govern- 
ment, in  the  execution  of  its  laws,  is  no  compensation  to 
the  impaired  and  wounded  sovereignty  of  the  States,  for 
the  concession  to  another  power  of  the  authority  to  sus- 
pend the  right  of  their  citizens  to  obtain  the  writ  of 
habeas  corpus  from  their  judge-;. 

This  question,  so  far  as  I  have  discovered,  was  noticed 
in  only  one  of  the  State  conventions,  which  ratified  the 
constitution  of  the  United  States.  In  the  Massachusetts 
convention,  . Judge  Sumner,  discussing  the  clause  as  to 
the  suspension  of  the  writ  of  habeas  corpus,  said:  "Con- 
have  only  power  to  suspend  the  privilege  to  person- 
commit  ted  by  their  authority.  A  person  committed  un- 
der authority  of  the  States  will  still  have  a  right  to  the 
writ."— 2  Elliott's  Debates,  109. 

I  concede,  and  never  intended  to  be  understood  as  con- 
troverting, the  authority  of  State  courts  to  inquire  into 
the  cause  of  imprisonment  of  the  citizens  of  the  State, 
On  the  contrary,  I  hold,  as  do  all  the  authorities,  that  a 
State  judge  ought  to  take  jurisdiction,  until  he  ascertains 
that  the  petitioner  is  held  under  the  authority  of  the 
Confederate  £  and  that  as  soou  as  he  is  so  informed, 

whether  by  the  petition  itself,  or  the  subsequent  proceed- 


SUPREME  COURT 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 

in-~.  he  ought  to  repudiate  the  cause. — Ableman  v.  Booth, 
supra;    also,  Sims'  case,   7   Cash.   285;    Watkins'    ci 
3  Peters,  201 ;  Ex  parte  Passmore  Williamson,  Amor.  Law 
Kegister  for  November  and  December,  1855,  vol.  4,  p.  81. 

I  fully  concur  with  my  brother  Stose  in  the  conclusion 
attained  by  him  in  the  Dudley  case.  I  concur  with  him, 
also,  in  his  construction  of  the  law  and  regulations  on  the 
subject  of  substitution.  As  far  as  the  question  of  juris- 
diction is  concerned,  I  rest  my  conclusion  upon  my  own 
argument,  and  do  not  assent  to  the  reasoning  which  con- 
cedes jurisdiction  to  the  State  courts  in  some  cases,  and 
denies  it  in  others. 

This  opinion  has  been  swelled  to  a  great  length  by  the 
numerous  and  extended  quotations  made  in  it.  My 
apology  for  this  is,  that  I  have  felt  solicitous  to  vindicate 
my  position  with; the  bar  of  the  State;  and  I  thought  it 
would  be  better  to  make  the  literal  extracts  found  in  this 
opinion,  because  many  belonging  to  the  profession  may 
not  have  the  time  or  opportunity  to  examine  the  works 
from  which  the  quotations  are  made.  At  the  time  when 
I  wrote  my  first  opinion,  there  had  been  only  one  or  two 
adjudications  upon  the  subject  in  the  Confederate  States. 
The  question  has  been  now,  expressly  and  by  implication, 
passed  upon  by  several  of  the  appellate  State  tribunals  in 
our  Confederacy;  and  in  no  case  known  to  me  has  an  ap- 
pellate State  court  sustained  the  doctrine  which  1  main- 
tain. Both  of  my  brother  judges  differ  from  me.  There 
has  not  yet  been  established  a  supreme  court  of  the  Con- 
federacy, which  could  serve  as  a  common  arbiter,  to 
whose  decision  all  would  submit.  Under  the  circum- 
stances described,  I  must  treat  the  question  as  settled  for 
the  present;  and  although  not  convinced  of  any  error  in 
my  reasoning  and  conclusions,  I  shall,  so  long  as  those 
circumstances  continue  to  exist,  suffer  the  State  jurisdic-  . 
tion  to  be  exercised  to  the  extent  agreed  upon  by  this 
court,  without  further  controversy. 

R.  W*.  WALKER,  J.— This  case  presents  the  question 
of  the  power  of  the  State  courts  to  discharge,  on  habeas 


OF_ALABAMA. 713 

Ex  parte  Hill,  in  re  Armistead  v.  Confederate  States. 


corpus,  persons  illegally  held  in  custody  by  the  enrolling 
officers  of  the  Confederate  States,  under  the  asserted  au- 
thority of  the  acts  of  congress  popularly  known  as-  the 
" conscript  laws."     I  am  strongly  inclined  to  the  opinion, 
that  the  jurisdiction  of  the  State  courts  to  issue  the  writ 
of  habeas  corpus,  to.  bring  in  persons  held  as  conscript* 
under  the  alleged  authority  of  these  laws,  and  to  try  the 
lawfulness  of  their  detention,  is  concurrent  and  co-extensive 
with  the  jurisdiction   of  the   Confederate  courts  in    the 
premises.     At  all  events,  I  am  thoroughly  satisfied,  that 
whenever  a  person  in  the  custody  of  an  enrolling  officer 
in  this  State  shows  that  he  belongs  to  any  one  of  the 
classes  of  persona  eipressly  ''exempted  "  from  military  ser- 
vice by  the  laws  of  congress;  or  that,  having  furnished  a 
substitute,  he  lias  obtained  a  discharge,  which  is  still  valid 
and  operative;  or  that  he  is  not  of  conscript  age  ;  or  that, 
because  of  non-resideuce,  color,  or  other  legitimate 
son,  the  law  of  conscription  does  not  apply  to  him,  it  is 
not  only  the  right,  but  the  sacred  duty  of  the  judges  of 
the  State  courts,  to  discharge  him  on  habeas  corpus. 

The  only  question  necessarily  presented,  and,  as  I  un- 
derstand it,   the  only  question   actually  decided    in    /.'• 
parte  Hill,  at  the  last  term,  (in  which  I  did  not  sit,)  was 
as'to  the  jurisdiction  of  the  State  courts,  on  habeas  corpus, 
to  discharge  on  the  ground  of  physical  incapacity,  persons 
in  the  custody  of  the  enrolling  officer,  who  fail  to  show- 
that  they  have  been   '■'-held  unfit  for  military  service,  by 
reason  of  bodily  incapaeit}-,  under  the  rules  prescribed  by 
tary  of  war."     On  that  question  I  prefer  to  with- 
hold an  opinion  for  the  present;  contenting  myself  with 
aaying,  that  if  the  Stafe  courts  have   no  power  to  dis- 
charge in  such  a  case,  it  must  be  because  a  person  who 
has  not  been  "held  unfit  for  military  service,  by  reason  of 
bodily  incapacity,  under  the  rules  prescribed  by  the  sec- 
ry  of  war,"  i^  not  legally  exempt  from  conscriptior , 
although  he  may  be  in  fact  unfit  for  military  service  on 
account  of  such  incapacity.     If  that  be  so,  the  enrollment 
and  detention  of  such  a  person  aa  a  conscript  arc  author- 
ized by  law;  and  consequently,  the  judges  of  the  Confed- 
46 


714  SUPREME  COURT  __ 

Hill,  in  re  Armietead  v.  Confederate  States. 

erate  courts  would  not,  any  more  than  those  of  the  State 
courts,  have  power  to  discharge  him  on  habeas  corjms. 

The  application  for  the  prohibition  is  placed  upon  the 
ground,  that  the  probate  judge,  in  issuing  the  writ  of 
s  corpus,  and  taking  cognizance  of  the  matters  therein 
mentioned,  has  "acted  without  authority  of  law,  and 
usurped  jurisdiction  of  matters  which  are  only  cognizable 
before  the  judicial  or  military  tribunals  of  the  Confeder- 
ate States."  I  think  it  should  be  overruled,  even  if  it 
should  appear  that  the  state  of  facte  set  forth  in  the  peti- 
tion for  habeas  corpus  docs  not  with  complete  certainty 
exclude  the  idea  that  the  petitioner  may  be  now  liable  to 
enrollment.  The  writ  of  prohibition  ought  not  to  be 
granted  in  such  a  case,  unless  it  is  plainly  shown  that  the 
judge  was  proceeding  to  try  a  question,  or  exercise  au 
authority,  out  of  his  jurisdiction. 

As  the  subject  is  one  of  the  gravest  import,  and  as  the 
state  of  my  health  disables  me  at  present  from  stating  at 
large  the  grounds  of  my  opinion  as  to  the  existence  and 
extent  of  the  jurisdiction  of  the  State  courts,  on  habeas 
comus,  in  cases  arising  under  the  conscription  laws,  I 
wish  to  reserve  the  privilege  of  preparing  and  filing  here- 
after another  opinion  in  this  case,  in  which  I  will  express 
more  fully  my  views  on  this  interesting  and  important 
question. 

Note  by  the  Reporter. — The  foregoing  opinion  of  R. 
W.  Walker,  J.,  applies  only  to  Armi6tead's  case,  and 
seems  to  exclude  the  expression  of  an  opinion  in  Dud- 
ley's case.  But  Judge  W.  afterwards  instructed  the  re- 
porter, in  publishing  the  cases,  to  state  that  he  dissented 
from  the  decision  of  the  court  in  the  latter  case,  unless, 
in  the  meantime,  he  himself  prepared  and  Sled  another 
opinion,  expressing  more  fully  his  views. 


OF  ALABAMA. , 715 

Ex  parte  McCanls. 


Ex  Parte  McCANTS. 

[habeas  corpus.] 

1.  Liability  of  person  having  substitute  in  Confederate  army  to  service  in 
/State  militia. — A  person  who,  being  liable  to  military  service  in  the 
army  of  the  Confederate  States  under  the  "  conscript  laws"  of  con- 
gress, procured  a  discharge  from  that  service  by  furnishing  a  sub- 
stitute in  bis  stead,  is  nevertheless  subject  to  militia  duty  under 
the  State,  laws,  and  is  liable  to  the  draft  ordered  by  the  governor 
on  the  17th  June,  1863,  under  the  requisition  of  the  president  of 
the  Confederate  States  fur  teven  thousand  troops  from  the  militia 
of  tlii-  State. 

The  petitioner  in  this  case,  Allen  G-.  McCants,  applied 
to  the  probate  judge  of  Montgomery  county  for  the  writ 
of  habeas  corpus,  by  which  he  sought  to  obtain  his  dis- 
charge  from  the  custody  of  Col.  John  II.  Cogbo urn,  com- 
manding the  24th  regiment  of  the  militia  of  this  State. 
The  facts  of  the  case,  as  shown  by  the  petition  and  the 
return  to  the  writ,  which  were  uncontroverted,  arc  these: 
In  January,  1863,  the  petitioner,  being  liable  to  military 
duty  under  the  k-  conscript  laws"  of  congress,  procured  a 
discharged  from  service  in  the  army  of  the  Confederate 
.^tutes,  by  furnishing  a  substitute  who  was  accepted  in 
Bis  stead.  In  June,  1863,  the  president  of  the  Confeder- 
ate States  made  a  requisition  on  the  governor  of  this 
State  for  se ven  thousand  troops  from  the  State  militia, 
to  be  mustered  into  the  service  of  the  Confederate  States, 
withinti  Alabama,  for  the  term  of  six  months. 

The  governor  thereupon,  on  the  17th  June,  ordered  a 
drafl  ilitia. — General  orders,  No.  1<>.     The 

draft  was  held  on  the  25th  July,  and  the  petitioner  was 
drafted  as  one  of  the  seven  thousand  troops.  On  these 
facts,  the  probate  judge  refused  to  discharge  him  from  cus- 
tody ;  holding  that  his  discharge  from  service  in  Hie  Con- 
federate States  army,  as  above  stated,  did  not  exempt  him 
from  liability  to  service  in  the  State  militia  under  the 


716  SUPREME  COURT 


i.wo.  by  agi 
ind  submitted  on   tin 
transcript  <>r  bill  of  ■ 

A.  B.  Clithirall,  for  the  petil 

w.m.  r.  Chii 

a.  J.  WALKER,  c.  J.— {Sepl 

is  made  a   requisition  apon 

•ii  th<  usund  of  the 

militia,  I  •   within  the  State,  for  six  month?  from  the 

itioner  was.  on  the  25th  July, 

dr;it*'  militia-nian  under  that  requisition.     Having 

i  previously  enrolled  as  a  conscript,  he  was  <>n  the 

nary  last  die  -••  he  had  furnish* 

The   question    of  the  case   thu  !    is. 

ther  this  discharge   exempts  him   from   liability  to 

servt  tnfederate  States  as  a  militia-man;  and  for 

the  i  which  we  proceed  to  state,   we  decide  it  in 

the  negal 

The  milita  gth    of  the  Coufederat< 

divided  into  two  departments ;  the  army  proper,  embrac- 
ing the  provisional  and  permanent  organization,  and  the 
militia.  The  army  proper  has  been  created  by  virtue  of 
uthority,  bestowed  in  the  constitution,  "to  raise  and 
support  armies."  The  government  employs  the  militia 
under  the  separate  and  distinct  constitutional  power  "  to 
provide  for  calling  forth  the  militia,  to  execute  the  lawi 
of  the  Confederate  States,  suppress  insurrections,  and 
■is."  The  service  of  the  citizen  in  these  two 
different  departments  is  exacted  by  the  authority  of  dis- 
tinct {'"  anted  in  distinct  clauses  of  the  constitu- 
tion. 

The  government  may  exercise  those  different 
for  different  purposes,  and  may  impqse  upon  citizens,  in 
net  departments,  duties  altogether  variant 
iu  their  character   and    objects.     There  is    no  stion 

upon  the  employment  of  the  army  proper,  excepl 


OF  ALABAMA.      717 

Hits. 


may  bo  implied  from  the  Limited  powers  of  our  Confeder- 
ate government,  [t  may  be  required  to  serve  in  an 
aggi  ar  in  for  »r  in  building  or  gar- 

•  ificationa    in  times  of  ;  r   to  do   any 

Other  military  duty,   which  ;  irnment  may   1 

mutely  i  The  militia,  however,  can  be  called  forth 

only  for  the  three  purposes  specified  in  tin1  constitution, 
the  laws,  suppressing  insurrections,  and  rc- 
peili:  It  may  happen,  that  the  Boldier  in  the 

arm  and  tin-  militia-man,  may  be  engaged  in  the 

sami  :  but  the  obligations  of  the  former,  and  the 

by   far  the    more  extensive,  and 

Lore  perilous  and  arduous,  more  dia- 

tani  and  prol 

Thi  .m  m>i  render  actual  service,  Bimul- 

.  in  both  the  military  departments  ;  and,  there- 

•rnment  can  not  p'-mire  it.     But#t  has  the 

I  authority  t  in   reference  to   any 

citizen,  ol  the  proper  caj  .  dis- 

.  and   to  require  in  eith 

military  departments  forbearance  of  I  rn- 

h  and  tuk'.-  any  or  given  <  iti- 

can 

.  :ain 

from 

can  the 

irmy  prop*  r,  hind 
the 
•  do  t  i,  lar  duty 

■ 

ion§ 

i   by 
i  the 


718 SUPREME  COURT 

Ex  parte  McCants. 


army  proper,  or  define  conditions  upon  which  they  might 
be  granted,  for  the  reason,  that,  in  an  emergency,  the 
services  of  the  discharged  soldier  may  still  he  made  avail- 
able for  local  defense,  the  suppression  of  social  disturb- 
ance.-, and  the  enforcement  of  the  laws;  and  the  citizen 
may  well  be  supposed  to  have  reconciled  his  sense  of 
patriotism  with  the  act  of  leaving  the  army,  by  the  reflec- 
tion that  he  could  still  serve  the  country  as  a  militia-man. 
It  can  not,  therefore,^  successfully  contended  that  the 
discharge  was  contemplated,  either  by  the  government 
or  by  the  citizen,  as  an  emancipation  from  the  restricted 
and  specific  duties  which  may  be  devolved  upon  the  mi- 
litia. A  discharge  from  the  army  proper  alone  can  have 
no  effect  upon  the  obligation  to  render  service  as  a  part 
of  the  militia. 

It  may  be  said,  that  the  petitioner's  discharge  was  not 
Bimply  fr/fin  the  army  as  a  conscript,  but  was  a  general 
and  comprehensive  discharge  from  the  military  service  of 
the  Confederate  States;  and  that,  therefore,  Ihj  argu- 
ment which  \yc  have  made  has  no  application  to  the  case. 
The  discharge  was  granted  under  the  authority  of  the 
ninth  section  of  the  act  of  congress,  approved  April  16tb, 
1862.  That  act  simply  provides,  "that  persons  not  liable 
for  duty  may  fee  received  as  substitutes  for  those  who  are, 
under  such  regulations  as  may  be  prescribed  by  the  secre- 
tary of  war."  Interpreting  the  transaction  between  the 
government  and  the  petitioner  in  the  light  of  the  act,  it 
amounts  only  to  this:  that  the  petitioner,  by  virtue  of 
the  law  owing  service  in  the  army  proper,  tenders  a  man 
to  render  it  in  his  place  ;  the  government  accepts  him, 
relieves  the  petitioner  from  that  particular  service,  and 
remits  him  to  his  original  status.  He  is  discharged  only 
from  the  service  which  another  renders  in  his  place.  The- 
government  exempts  from  no  duty  except  that  which 
another  binds  himself  to  render  as  a  substitute.  It  dis- 
charges from  duty  in  the  army  proper,  which  the  law 
authorized  it  to  exact,  and  not  from  the  militia  service. 
in  which  he  had  no  substitute. 

Whenever  only  a  portion  of  those   within  the  militia 


OF  ALABAMA.  719 


Ex  parte  McCants. 


age  are  placed  in  the  army  proper,  the  substitutes  will  be 
found  to  consist,  to  a  large  extent,  of  men  belo.u'gin 
the  militia.  The  history  of  the  war  now  pending  will 
show  many  instances  of  the  substitution  of  militia-n  n. 
If  the  petitioner's  claim  to  exemption  is  well  founded, 
whenever  a  substitute  and  the  principal  belong  to  the 
militia,  two  men  are  lost  to  the  militia  service;  the  prin- 
cipal, because  he  has  a  substitute  in  the  army;  and  the 
substitute,  because  he  is  in  fact  in  the  army.  If  the  gov- 
ernment were  to  take  one  half  the  militia  as  conscripts, 
and  they  were  to  employ  the  other  half  as  substitutes, 
there  would,  upon  the  argument  for  petitioner,  he  no 
militia,  notwithstanding  half  of  them  were  at   h  1 

lowing  their  accustomed  vocations.  The  argument 
to  the  absurd  and  shocking  conclusion,  that  a  law,  simply 
extending  the  privilege  of  substitution  to  the  people,  had 
converted  all  those  who  might,  by  the  aid  of  friendship 
or  money,  procure  substitutes,  into  a  privileged  class, 
from*  the  constitutional  obligation  to  serve  the  Coo- 
federate  States  in  the  militia,  even  though  every  other 
person  belonging  to  that  arm  of  the  public  service  was  in 
the  army.     Such  an  argument  can  not  be  sound. 

It  is  contended,  that  he  who  has  furnished  a  substitute, 

.-lively  in  the  army  proper,  and  that  he  can  not 
he  required  to  render  the  incompatible  service  ol  tie 
militia-man.     In  certain  cases,  the  law  from  ..  rom- 

infers  facts,  without  any  regard  to  their  actual  exist- 
ence.    These  facts  are  called  constructive.     Thus  we  have 
int.     law  constructive  fraud,  constructive  noti 
struct:--*    housebreaking,  and  the  like.     The  inf<  ti 

its  is  made  upon  principles  and  policy  whicl 
not  apply  here,  and  their  application   would    lead  I 

irdities.     The»  constructive  fa  not 

presumed   to  a   single   purpose;  but   the  law- 

adopts  them,   and   follow  i    in    their   c 

If,  then,  the  principal   ie 
one  purpose,  the  law  mas  all  that 

[uent  upon  it.     The  principal  si. 
pay,  and  all  :  s  and   exemptions   provided   by 


720  SUPREME  COURT 


Ex  parte  McCarits. 


the  law  for  the  soldier  in  service;  and  he  should  sutler 
for  the  desertion,  or  other  misconduct  of  the  substitute. 
It  can  not  be  necessary  to  argue  this  point.  From  the 
very  nature  of  the  thing,  the  doctrine  of  construction  is 
incapable  of  any  application  to  the  case.  Qui  facit  per 
•ilium,  faeit  per  se,  is  a.  maxim  of  the  law:  but  it  has  no 
pertinency  to  the  question.  lie  who  furnishes  a  substi- 
tute, does  not  serve  through  his  substitute.  The  latter, 
on  the  contrary,  serves  in  his  place — is  mustered  into  ser- 
vice, and  discharges  all  the  offices  of  a  soldier,  as  an  in- 
dependent, distinct  person,  and  not  as  the  representative 
or  agent  of  another.  There  can  be  no  such  thing  as  do- 
ing military  duty  through  an  agent.  The  nature  of  the 
service,  and  the  constancy,  fortitude,  and  heroic  qualities 
which  it  requires,  are  such  as  to  exclude  the  idea  of  any 
representation  by  an  agenl  in  the  army.  The  principal 
is  always  entitled  to  the  agent's  earnings  in  the  business 
of  the  agency  ;  and  therefore,  if  the  substitute  were  but 
an  agent,  the  principal  should  receive  the  pecuniary  com- 
pensation, and  the  higher  rewards  of  honor,  and  fame, 
and  gratitude,  which  await  the  faithful  and  gallant  sol- 
dier, and  stimulate  him  to  exhibitions  of  valor. 

These  reasons,  we  think,  justify  the  conclusion  which 
we  announced  at  the  outset,  and  which  was  attained  as 
the  result  of  a  consultation,  in  which  all  the  judges  ot 
the  court  participated. 

The  petition  must  be  overruled,  and  the  petitioner 
must  pay  the  costs  of  the  proceeding. 

STONE,  J. — As  I  understand  the  term  militia,  found 
in  the  15th  and  16th  clauses  of  section  8,  article  I,  of  the 
Confederate  constitution,  it  does  not  mean  thai  body  of 
mm,  organized  under  State  authority,  who  are  known  as 
State  militia.  The  State  might  fail  to  make,  or  even  to 
provide  for,  an  organization  of  the  militia;  and  still  the 
right  and  power  of  the  Confederate  government  to  call 
"forth  the  militia  to  execute  the  laws  of  the  Confederate 
States,  suppress  insurrections,  and  repel  invasions," 
would  remain  unimpaired.     Clause  16   reserves  "to  the 


OF  ALABAMA. 721 

Ex  parte  McCants. 


States  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia,  according  to  the 
discipline  prescribed  by  congress;"  but  all  other  powers 
are  to  be  exercised  by  or  under  Confederate  authority. 
I  will  not  say  the  State  authorities  may  not,  if  they  will, 
be  employed  and  aid  in  calling  forth  the  militia;  but 
such  assistance  is  not  necessary  to  the  exercise  of  this 
power  by  the  Confederate  government.  The  State  is 
armed  with  no  power  to  defeat  the  call,  by  refusing  to 
respond  to  it;  but  congress  may  disregard  State  agency 
altogether  in  the  execution  of  this  power,  and  provide  for 
a  direct  call  on  the  people,  when  either  of  the  exigencies 
mentioned  in  the  fifteenth  clause  arises.  Congress  has, 
also,  the  clear  right  to  define  and  declare  what  persons- 
shall  be  subject  to  militia  duty,  under  the  call  of  the 
Confederate  government ;  aright  which  was  frequently 
exercised  under  the  government  of  the  United  States. — 
See  Brightly's  Digest,  tit.  "Militia." 

My  construction  of  the  word  militia,,' -as  found  in  the 
constitution,  is,  that  it  is  not  confined  to  any  organiza- 
tion ;  but  that  its  true  and  exact  import  is,  that  portion  of 
the  people  who  are  capable  of  bearing  arms — the  arms-bearing 
population.  This  definition  of  the  term  will  facilitate  the 
solution  of  many  of  the  disputed  questions,  which  have 
arisen  on  the  construction  of  that  part  of  the  constitution 
which  provides  for  calling  forth  the  militia. 

Saving  thus  set  myself  right  on  the  question  of  the 
construction  of  the  term  "  militia,"  it  is  not  my  inten- 
tion to  otter  ai  y  comments  on  the  opinion  of  my  broth- 
ers supra,)  some  portions  of  which  do  not  meet  my  appro- 
bation. 


INDEX. 


ACCOUNTS. 

I.  Proq)  i  made  by  deceased  clerk. — Books  of  account, 
kept  by  a  It,  and  all  other  eat:  i  a  >randa  made  in 
the  eoursc  of  business  or  duty,  by  one  who  would  be  at  the  time  a  com* 
petent  fact  which  he  registers,  are  held  competent  evi- 
dence from  the  pre  mm  id  neces  ity  of  the  case  ;  but,  the  reason  of  the 
rule  ceases,  and  the  rule  itself  consequently  fails,  wh  n  it  appears  that 
there  i' other  and  better  evidence  of  the  same  facts  j  as  where  it  is 
shown  to  lx>  the  custom  of  a  bank  to  payout  money  only  on  the  checks 
of  it  nk  of  Montgomery  v.  Plaunett's  Adm'r 17S 

ACTION. 

1.  When  in  his  own  name. — A  bailee  for  reward,  having  deliv- 
ered •  aril  his  barge  to  a  steamboat,  to  be  carried  to 
their  d                     may  maintain  an  action  in  his  own  n  t  the 

i1    for  the  negligence  and  carelessness  of  their 

servants  in  the  tr  n.-portation  of  the  goods,  whereby  plaintiff  lost  his 

rewap  -died  to  pay  damages  to  the  owners  of  the  g"ods. 

McGill  v  28(5 

2.  Whet  tut — Under  the  provisions  of  the  Codp,  (§§  2036, 
2182,)  a  _  sue  in  his  own  name,  for  the  u<e  of  Ids  ward,  to 
recover]...  te conversion  of  the  ward's  property. — Longmire 

v.  Pil  292 

3.  Action  mpt  property,  against  officer  making  levy.  —  A 
purchaser  defendant  in  execution,  of  property  exempt  from 
levy  ail  I  s   maintain  an  action  against  the  sheriff,  fi>r  a  ■ 

ill  making  the  affidavit  required  by  the  Matute 

(Cod   .  ;.T1 

tries. — An  adult  p  n  com- 
pos mentis,  is  liable  on  an  implied  contract  for  nee  I  him, 
suitable  to  >u  lition  in  life;  and  where  uo  guardian  has 
been  a]  inaction  for  the  valo  must 
necer  thing- 
tnn .  400 


724 INDEX.        

ACTION— CONTINUED. 

5.  Whit  actions  lie  against  corporation. — An  action  of  trespass  for  false  im- 
prisonment lies  against  a  corporation,  but  an  action  on  tbc  ca-e  for  a 
malicious  prosecution  does  not. — Ows'ey  v.  Montgomery  &  West  Point 
Railroad  Co 485 

6.  Action,  ct  lata  between  UHtureties  on  official  bond. — One  of  the  sureties  on  a 
Sheriff's  official  bond  cannot  maintain  an  action  at  law  on  the  bond, 
against  the  other  sureties,  for  their  principal's  default. —  Mitchell  v.  Tur- 
ner   5SS 

ADVANCEMENT. 

See  Estates  ok  DCCXDBNTS,  1-2. 

ADVERSE  POSSESSION". 

1.  Whale  possession. — A  knowledge  on  the  part  of  an  ad- 
verse bolder  that  hi->  title  is  defective,  does  not,  of  itself,  p  event  the 
operation  of  the  statute  of  limitations  iu  I113  favor. — Manly 's  Adm'r  t. 
Turnipseed 1 440 

2.  Adverse  postewion  Ixtween  husband  and  wife. — At  common  law,  the  posses- 
sion by  the  Wife,  during  coverture,  is  the  possession  of  the  husband,  and 
can  not  ripen  into  a  perfect  title  i  i  her,  as  against  the  husband's  admin- 
istrator, although  it  is  shown  that  the  husband  had  abandoned  her  when 
her  posses  ion  commenced  ;  that  he  never  afterwards  returned  to  her, 
and  never  asserted  any  claim  to  the  property  ;  and  that  she  held  and 
claimed  it,  as  her  own  individual  property,  for  a  continuous  period  of 
more  than  twenty  years.— Bell  v.  Bell's  Adm'r 460 

;;.  Adverse  possession  by  purchaser,  under  color  of  title. — Where  a  purchaser 
enters  Into  the  possession  of  land  under  a  vendor's  bond,  conditi  ed 
to  m»ke  title  by  a  specified  day,  which  must  arrive  before  a  part  of  the 
purchase-money  is  due  by  the  terms  of  the  contract,  his  possession  can 
not  be-  considered  adverse  to  the  vendor,  until  the  day  app  inted  for 
the  conveyance  of  the  title;  and  where  such  bond  is  executed  by  one 
who  professes  to  net  as  the  agent  of  several  joint  owners,  for  one  of 
whom  he  has  do  authority  to  act,  and  is  thus  conditioned  for  the  c-on- 
veyance  of  title  by  them,  the  character  of  the  purchaser's  possession 
is  the  same  as  to  all  the  owners. — Ormond  v.  Martin 52(f 

4.  Prescriptive  easement. — A  tolerated  or  permissive  user  of  an  easement 
can  n  v<  r  ripen  into  a  title  by  prescription,  while  a  user  wh  ch  te  ad- 
verse, independent,  or  as  of  right,  it  continued  for  a  period  correspond- 
ing with  the  statutory  bar  to  a  right  of  entry  upon  land,  will  confer  an 
absolute  right ;  but  the  use  of  a  ditch  and  levee  on  a  party's  own  land, 
which  is  in  itself  rightful,  can  not  confer  a  prescriptive  right  to  inju- 
riously overflow  the  lands  of  an  adjacent  proprietor  many  years  after- 
wards, when  the  ditch  has  become  gradually  filled  up  with  the  sand  and 
dirt  accumulated  and  deposited  therein  by  the  continued  flow  of  water. 
Polly  v.  McCall 246 

6.  Same  — The  English  doctrine,  that  a  right  to  have  aneient  windows  un- 
obstructed can  arise  from  mere  uninterrupted  enjoyment  for  the  period 
prescribed  by  the  statute  of  limitations  as  a  bar  to  actions  for  the  re- 
covery of  laud,  does  not  prevail  in  this  country. — Ward  v.  Neal 413 


INDEX. 725 

AGENCY. 

1.  Agency  vel  non.  question  of  fad;  charge  invading  province  of  jury. — Wiiere 
the  fact  of  agency  is  controverted,  and  there  is  any  evidence  ten  liny; 
to  establish  it,  the  sufficiency  of  that  evidence  is  a  question  for  the  jury, 
under  appropriate  instructions  from  the  court;  and  a  charge,  asserting 
that  tin1  evidence  is  not  sufficient  to  prove  the  agency,  i^  erroneous. 
Bank  of  Montgomery  y.  Plannett's  Adm'r 178 

2-  Note  signed  by  agent,  for  principal,  held  prima  facie  contract  of  principal. 
A  promissory  note,  beginning  thus.  "Twelve  months  after  date,  vc  prom- 
ise to  pay,"  &0.  ;  and  signed  thus,  "For  the  Montgomery  lion  V 
J.  S.  \\\,  president,  8.  J.,  secretary," — is,  prima  facie,  the  contract  of 
the  principal,  and  not  binding  on  J.  S.  W.  personally. — Honey's  Adm'r 
v.  Winter •-  M 

AMENDMENTS. 

1.  Of  -A  complaint  may  be  amended,  (Code,  §  240".)  by  strik- 
ing out  the  name  of  one  of  the  plain' iffe,  who  was  dead  at  the  com- 
mencement of  the  suit. — Jemison  v.  Surih. MO 

2.  Same.— Under  tile  provisions  o!"  the  Cole.  (§§  2402-3,)  where  the  sum- 
mons is  in  the  name  of  the  plaintiff  individually,  the  complaint  may  be 
so  anr  nd  d  as  to  show  that  he  sues  as  guardian  of  a  minor,  and  for  the 
use  of  his  ward. — Longmire  v.  Pilkington 293 

3.  Same,  after  demurrer  sustained. — Under  the  Code,  (§  2255,)  if  plaintiff 
amends  lis  complaint,  after  the  court  has  sustained  a  demurrer  to  the 
original,  and  proceeds  to  trial  on  the  amended  complaint,  he  docs  not 
thereby  waive  his  right  to  assign  as  error  the  judgment  on  the  demur- 
rer, unless  the  record  shows  that,  in  consequeuce  of  the  amendment,  he 
sustained  no  injury  by  that  judgment.  (Overruling  Sluppajrd  v.  Shelton, 
S4  Ala.  652,  and  limiting  Stuffings  v.  Newman,  26  \la.  300,  to  cases 
commenced  before  the  Code.) — Williams  v.  Ivey   220 

4.  Of  affirmed  judgment, — The  affirmance  of  a  judgment  by  the  supreme 
court,  on  certificate,  at  the  term  next  preceding  that  to  which  the  ap- 
pftil  is  taken,  may  be  corrected  on  motion,  and,  consequently,  furnishes 
no  ground  for  equitable  relief  against  the  judgment. — McCollum  v. 
Prewitt 498 

See,  al -o.  Chakosbt  Pleading  ahd  Psacticx,  19,  20,  21. 

ATTACHMENT. 

1 .  Action  an  bond  ;  malice,  and  nndidivt  damages. — In  an  action  on  an  attach- 
ment ltoiid,  if  the  attachment  was  not  vexatious  as  against  the  defend* 
ant  in  the  process,  the  fact  that  the  attaching  creditor  was  actuated  by 
malice  towards  a  third  person,  who,  though  a  joint  obligor  with  the  de- 
fendant in  attachment,  was  not  a  party  to  the  process,  affords  no  ground 

for  the  K  coTery  of  vindictive  damages.— V»  ood  v.  Barker ' 311 

2.  Same  ;  admimbUitg  of  declaration*,  «  part  of  res  gestct, — The  declarations 
of  the  plaintiff  in  attachment,  to  his  attorney,  as  to  his  reasous  for  su- 
ing out  the  process,  made  at  the  time  of  suing  out  the  writ,  are.  :. 
sible  evidence,  in  an  action  on  th<>  attachment  l>ond,  as  a  part  of  the  ret 
gestae I ' 311 


INDEX. 

i  ACHMENT -continued. 
H.  Tl  to  plaintiff  in  garnishment. — Theal'owance 
of  a  set-off  claimed  by  tbe  garnishee,  against  the  claims  admi'ted  by 
him  to  be  due  to  the  defendant,  tr  to  his  transferree  is  not  a  matter  of 
■which  tbe  plai  complain  on  error,  when  the  record  shows  that 
he  contest  d  the  transferree'*  right  to  the  claims,  and  that  the  jury  found 
the  issue  in  favor  of  the  transferree. — Union  India-Rubber  Company  v. 
Mitchell 317 

ATTORNEY-AT-LAW. 

1.  Duty  and  liability. — An  attorney,  receiving  a  note  for  collection,  is  not 
hound  to  file  it  as  a  claim  against  the  insolvent  estate  of  the  deceased 
debtor,  and  is  nol  guilty  of  any  negligence  in  failing  to  file  it,  when  it 
appears  that  tl  e  debtor  was  living  at  the  time  the  note  was  put  in  bis 
bands,  and  it  is  not.  shown  that  he  had  knowledge  of  the  debioi's  sub- 
sequent death — Stubbs  v.  Beene's  Adm'r 655 

AUCTIONEERS. 

1.  Tax  on  .—The  tax  imposed  by  law  on  the  gross  amount  of 
auction  sales,  (Codt  .  §  391,  subd.  17,)  is  to  be  assessed  against  and  paid 
by  the  auctioneer,  and  not  by  the  owner  of  the  property  sold. — Tho 
State  v.  Lee  &  Norton 102 

BAILMENT.  v 

1.  B  liter's  right  to  terminate  bailment. — If  the  bailor  of  slaves,  when  deliver- 
ing possession  to  the  bailee,  declares  that  he  giv.>sor  lends  them  to  her,         ' 
"but  subject  to  his  call  at  any  time,"  bis  righ*  to  terminate  the  bail- 
ment, and  reclaim  the  slaves,  is  not  necessarily  limited  to  the  life-time 

of  the  bailee. — McGehee  v.  Mahone 212 

2.  When  bailee  may  .me  in  his  own  name. — A  bailee  'for  reward,  having  de- 
livered the  goods  on  board  his  barge  to  a  steamboat,  to  be  carried  to 
their  place  of  destination,  may  maintain  an  acion  in  his  o«n  nunc 
against  the  own.  rs  of  the  steamboat,  for  the  negligence  and  careless- 
ness of  their  servants  in  the  transportation  of  the  goods,  whereby  plain- 
tiff lost  his  reward,  and  was  compelled  to  pay  damages  to  the  owners 

of  tbe  goods. — MeCill  v.  Monette 285 

Z.  Common  carriers ;  liability  for jiegligence, — A  common  carrier  cannot  limit 
his  common-law  liability  by  any  general  notice,  but  may  so  limit  it  by 
a  special  contract  with  the  shipper  ;  and  a  bill  of  lading,  given  by  the 
carrier  on  the  receipt  of  the  goods,  and  accepted  by  the  shipper,  is  a 
special  contract  within  the  meaning  of  this  rule  ;  yet  such  special  con- 
tract cannot  be  pleaded  by  the  carrier,  as  au  exemption  from  liability 
for  any  loss  or  damage  resulting  from  his  own  negligence. — Steele  & 

Burgess  v.  Townsend 201 

4.  Sa7>ie ;  burden  of  pr vof  on  question  of  negligence. — Where  the  bill  of  lading 
contains  an  express  stipulation,  that  the  carrier  is  "not  accountable  for 
rust  or  breakage,"  proof  of  injury  to  the  goods  by  breakage  neverthe- 
less makes  out  a-  prima-facie  case  of  negligence  against  him;  and  the 
omw  is  then  on  him  to  show  the  exercise  of  due  care  and  vigilance  on 


INDEX. 727 

BAILMENT— continued.  ,  * 

his  part  to  prevent  the  injury  ;  unless  the  na'ure  of  the  injury,  or  of  the 
goods,  of  itself  furnishes  evidence  that  due  care  am!  dilig.  nee  could  not 
have  prevented  the  injury • 201 

&  Liability  of  steamboat-mat,  as  commvn  carriers,  in  mailer  of  transhipment  of 
freight. — A  transhipment  of  freight  is  only  justifiable  in  cases  of  ne- 
cessity, and,  if  made  in  the  absence  of  such  necessity  as  constitutes  a 
legal  excuse,  subjects  the  ca'rier  to  liabi'ity  for  the  si  beequent  loss  of 
the  freight  on  the  vessel  to  which  it  i--  transfer-red  ;  anil  the  mere 
grounding  of  a  steamboat  on  an  inland  river,  from  which  she  could 
relieve  herself,  with  safety  and  convenience,  by  temn/va  ilv  placing  a 
part  of  her.«cargO  on  the  bank,  and  afterwards  take  it  on  board  ajain 
and  finish  her  voyage,  doca  not  constitute  Mich  legal  excuse. — Cox,  , 
Brainard  &  Co.  v.  Fos-ue 419 

6.  C«-  '  plaintiff,  in  OC  nmon  carrier,  to  pr-  nil, 

l><iggagr.  —  ]n  an  action  against  arailn  ad  company,  as  a  com- 
mon carrier,  to  recover  d  images  for  the  loss  of  a  passenge  's  baggage, 
tha  plaintiff  may  piove  the  Contents  and  value  of  is  trunk  by  his  own 
oath.-  Douglass  v.  M   &  W.  P.  Railroad  Co 566 

7.  Birin  ,•  hirer's  a'i';.on;>/  !o  punish  slave,  and  liability  for  abuse  of 

— In  ;ho  absence  of  qualifying  stipulations  in  the  contract 
of  hiring,  the  hirer  a'qu.ires  the  master's  au  hority  t.o  inflict  reasonable 
punishment  on  th<  b]  ive  ;  and  in  determining  what,  is  a  reasonable  pun- 
ishment.—a  question  which  admits  of  no  certain  and  uniform  solu- 
tion,—regard  nn;st  be  bad  to  the  nature  o.  >tie  offense,  and  to  the  tem- 
per of  the  Blave  while  receiving  the  punish  men  ;  since  obstinacy,  re- 
rebclliousneei  on  his  part,  justifies  Bcverer  punishment 

than  would  otherwise  be  right  and.  prop  r.— Tillman  v.  Chadwick 332 

8  Same.— A  e'ldrge  to  the  jury,  assertiug  that,  ff  the  punishment  inflicted 
by  the  hirer  on  a  slave  "was  beyond  wlut  was  right  a  d  proper  under 
the  circumstances,  then  the  onus  was  on  him  to  pr  ve  that  lie  was  au- 
thorixi  1  by  the  slave's  conduct  to  whip  him  time  severely,  and  beyond 
what  would  hive  been  right  and  proper,"— id  calculated  to  mislead  and 
confute  the  jury,  arid  is  properly  refused 382 

BILL  I 

I     ;  —A  bill  of  exceptions,  which  is  without  date,  and  which  is 

not  shown  by  the  record  to  lime  prefer  bed 

by  th(   Statute,  (Code,  §  2358,)  will   I  ,  on   motion,  as  forming 

nopartol  :   e  record. — Union  India-Rubber Co.  i   Mitchell 317 

«\li<K  written  documents  are  mentioned  n  the  bill  of  excep- 
tions, as  constituting  a  part  of  it,  but  are  neitl  mto  if,  DOT  de- 
scribed hj  such  identifying  i  to  leave  no  room  for  mistake 
'"  ;i                   bing  officer,  they  cannot  be  regarded  as  a  part  of  the 

bill. —  Gn  lington  v.  Jones 196 

On  motiou  in  the  ftppell  Uc  court  to  estab- 
,isn  B  !  Of  the  primary  court 

'"'liIf,,!  '   ^  Sign.  ('  2864-58,)  the  p<  int,  decision,  and 

facts,  a    ■<.  whole,  must  be  con  1  in  the  bill;  and  if  written 

*>CUm  .nd  to  in  the  bill,  as  consiitutng  a  part  of  it,  but 


728  INDEX.  

BILL  OF  EXCEPTIONS— continued. 

are  neither  copied  into  it,  nor  sufficiently  identified  to  be  regarded  as 
part  of  it,  it  cannot  be  established 196 

4.  When  nonsuit,  with  bill  of  exceptions,  may  be  taken. — A  nonsuit  may  be 
taken,  with  a  bill  of  exception?,  (Code,  §  2357,)  in  consequence  of  the 
suppression  of  the  plaintiff's  deposition,  on  motion,  before  tbc  trial  is 
entered  upon. — Douglass  v.  M.  &  W.  P.  Railroad  Co 506 

BILLS  OF  EXCHANGE,  AND  PROMISSORY  NOTES.      , 

1 .  Note  signed  by  agent,  for  principal,  held  prima  facie  contract  of  principal. — A 
promissory  note,  beginning  thus,  "'Twelve  months  after  date,  we  prom- 
ise to  pay,"'  &c. ;  and  signed  thus,  "For  the  Montgomery  Iron  Works, 
J.  S.  W.,  president,  S.  J.  secretary," — is,  prima  facie,  the  contract  of  the 
principal,  and  not  binding  on  J.  S.  W.  personally. — Roney:s  Adm'r  v. 
Winter . 234 

2.  I/legality  of  consideration,  of  note — If  the  consideration  of  a  note  is  partly 
illegal,  ic  avoids  the  whole  note;  but  the  maker,  when  sued  on  the  note, 
may  nevertheless  waive  th«  illegality,  and  insist  on  a  failure  of  the  con- 
sider-tiou. — Wynne  v.  Whisenaut 282 

3.  J-ailurc  or  want  of  consideration  of  note. — In  an  action  on  a  note  given  for 
the  purchase-money  of  land,  sold  by  an  administrator  under  an  order 
of  the  probate  court,  a  defect  in  the  title  is  no  defense  to  the  suit,  if  the 
court  had  jurisdiction  to  order  the  sale. — Watson  v.  Collins'  Adm'r.. . .   515 

4.  Transfer  of  note — By  the  common  law,  (which  will  be  presumed,  in  the 
abset.ee  of  evidence  to  the  contrary,  to  prevail  in  a  sister  State,)  to 
transfer  the  legal  title  to  a  promissory  note,  without  delivery,  it  ie  ne- 
cessary that  there  should  be  an  endorsement  on  the  note  itself,  or  on 
another  paper  attached  to  it. — Boruni  v.  Ling's  Adm'r 584 

5.  Mistake  in  payee's  name  in  note. — When  a  promissory  note  is,  by  mistake, 
made  payable  to  Aaron  Formey,  instead  of  Aaron  Formby,  the  latter 
may  sue  upon  it  in  his  own  name,  alleging  that  it  was  made  payable  to 
him  by  the  name  therein  inserted,  and  may  prove  on  the  trial,  by  pirol 
evidence,  that  he  was  the  person  intended ;  and  his  assignee  may  sue  in 
like  manner,  making  the  same  averments  and  proof.  (Overruling 
Gayle  v.  Hudson,  10  Ala.  116  ) — Taylor  v.  Strickland 671 

<5.  Alteration  of  note  by  subsequent  verbal  contract. — The  maker  and  holder  of 
a  promissory  note  may,  by  subsequent  verbal  agreement,  founded  on 
sufficient  consideration,  change  the  rate  of  interest  which  it  bcar9  ;  yet 
the  holder  cannot,  in  a  6uit  on  th«  uote  itself,  recover  on  sucVmodified 
contract. — Uunt's  Executor  v.  Hall 034 

BONDS. 

1.  Validity  and  consideration  of  bond  of  officer  de  facto. — A  bond  executed  by 
the  intendant  of  an  incorporated  town,  with  others  as  his  sureties,  which 
recites  that,  by  virtue  of  his  election  as  intendant,  he  "  is  thereby 
made  ex  officio  a  justice  of  the  peace,"  and  is  conditioned  for  the  faithful 
discharge  of  his  duties  as  such  justice,  will  be  upheld  as  a  comtnou-law 
obligation,  (although  there  is  no  law  requiring  the  intendant  to  give 
bond.)  when  it  appears  that  he  was  at  least  a  justice  tit  faci-j.  and  that 


INDEX. 729 

BONDS — CONTINUED. 

the  bond  ia  supported  by  a  sufficient  consideration  ;  and  if  it  was  given 
for  the  purpose  of  procuring  for  the  intendant  patronage  and  business 
as  a  jus:ice  of  the  peace,  and  he  did  receive  patronage'and  business  as 
a  justice  on  the  faith  and  credit  of  it,  it  is  supported  by  a  sufficient  con- 
sideration.— Williamson  and  McArthur  v.  Woolf 296 

2.  Partial  satisfaction  of  bond. — A  deed,  executed  by  the  vendor  at  the  re- 
quest of  the  purchaser,  conveying  a  part  of  the  land  embraced  in  the 
title-bond,  with  covenants  of  warranty,  to  a  third  person,  may  be  ac- 
cepted by  the  purchaser  as  a  partial  compliance  with  the  condition  of 
the  bond  ;  and  being  so  accepted,  its  admissibility  and  validity  are  not 
affected  by  a  mistake  in  the  description  of  the  land  conveyed,  nor  by 
the  fact  that  the  vendor  had  no  title  to  that  part  of  the  land. — Bedell's 
Adm'r  v.  Smith 548 

3.  Tender  of  deed,  and  eviction,  as  prerequisites  to  right  of  action  on  vendor's 
lond. — Where  the  vendor  has  no  title,  and,  for  that  reason,  refuses  to 
make  a  title  when  requested,  the  tender  of  a  deed  by  the  purchaser,  to 
be  executed,  ia  not  necessary  to  perfect  his  right  of  action  on  the  title-  * 
bond;  and  an  actual  eviction  of  the  purchaser  is  not  necessary,  since 
ins  right  of  action  accrues  so  soon  as  the  bond  is  broken  by  a  failure  to 
convey 648 

4.  Estoppel  by  bend. — The  sureties  on  a  bond,  which  recites  that  the  prin- 
cipal obligor  'has  been  duly  elected  intendant  of  the  town  of  C,  and 
is  thereby  made  ex  officio  a  justice  of  the  peace,"  are  estopped,  when 
sued  on  the  bond  for  the  default  of  their  principal,  from  alleging  that 
he  was  not  a  justice  of  the  peace  ;  it  appearing  tliit  he  was  at  least  a 
justice  de  facto,  and  received  much  business  as  a  justice  on  the  faith  and 
credit  of  the  bond — Williamson  and  McArthur  v.  Woolf 296 

5.  Same.— A  delivery  bond,  executed  by  the  defendant  in  detinue,  which 
does  not  recite  any  fact  showing  that  the  defendant  had  possession  of 
the  property  at  the  service  of  the  writ,  docs  not  estop  him  from  show- 
ing, in  defense  of  the  action,  that  he  did  not  have  the  possession  of  the 
property  at  that  time ;  nor  doe9  the  giving  of  such  bond  operate  an  es- 
toppel en  pent  against  him.—  (Explaining  and  limiting  Wallis  v.  Long, 

16  Ala.  738.)— Miller  v.  Hampton 357 

CHANCERY. 

I.    Jumsdiction. 
I.  Equitalik  attachment ;  bequest  to  trustee,  for  comfort  and  support  if  debtor,  but 
' .'  debts. — Where  a  sum  of  money  is  bequeathed  to  a  trus- 
tee, in  trust  for  a  debtor,  "not  subject  to  any  debt  or  debts  he  may 
have  contracted,  but  for  his  comfort  and  support,"  it  mar  be  subjected 
by  equitable  attachment  (Code,  §  2956)  to  the  payment  of  his   existing 

debts. — Smith  v.  Moore 342 

'ofls,  and  '". — After  dower  has  been  allot- 

ted to  the  widow  by  the  probate  court,  she  BUT  come  into  equity  to 
recover  d.imagCH  for  its  detention  ;  and  the  measure  of  her  damages, 
where  the  husband  left  no  descendant",  would  be  one-half  of  the  rent, 
from  the  death  of  her  hueband,  until  the  assignment  of  dewer. — McAl- 

iieter  v.  McAllister 366 

47 


730  INDEX. 

CHANCERY— continued. 

3.  Equitable  sn-off  against  claim  for  mesne  profits. — If  fie  executor  carries 
on  the  plantation  of  the  deceased  husband  with  the  labor  of  the  slaves, 
pays  all  the  debts  and  expenses  of  administration  out  ol  the  income, 
thereby  saving  the  entire  persoual  estate  for  distribution,  and  distri- 
butes to  the  widow,  uuder  an  order  of  the  probate  court,  her  distribu- 
tive share  of  the  residue  of  cuch  income,  this  constitutes  no  defense  to 
the  widow's  claim  lor  mesne  profits  ;  yet,  if  he  acted  in  good  faith,  be 
is  entitled  t9  a  credit  out  of  the  assets  for  tlu  amount  of  damages  re- 
covered from  him  by  her  ;  and  if  the  amount  received  by  her  as  a  dis- 
tributee exceeds  her  proper  share,  to  be  ascertained  after  deducting  the 
amount  of  her  recovery  from  the  entire  fund  for  distribution,  he  may, 
under  appropriate  pleadings,  recover  the  balance  from  her,  and  have  it 
adjusted  in  the  suit  for  mesne  profits 36(5 

4.  Injunction  of  action  at  law. — A  court  of  equity  will  not  enjoin  an  action 
at  law  for  a  trespass,  on  the  ground  that  the  plaintiff  therein  is,  and  w^s 
at  the  time  of  the  sieged  trespass,  indebted  to  thedefendaut  on  account 

of  other  matters,  and  is  insolvent. — Harrison  v.  McCrary CIO 

5.  Eqaitahlv  relief  ag  linst  judgiru  nt  at  law,  on  ground  of  diseovery. — After  th9  , 
rendition  of  a  judgment  at  daw  against  a  pa:ty,  he  cannot  maintain  a 
bill  in  equity  for  a  discovery  as  to  matters  of  purely  legal  eogn  izance, 
without  showing  a  sufficient  excuse  for  his  failure  to  take  tie  p:oper 
'Steps  to  obtain  the  discovery,  either  by  bill  in  equity,  or  by  interroga- 
tories uuder  the  statute,  while  the  action  was  pending.— McCollum  v. 
Prowit  i ^ 498 

§.  Same,  on  ground  of  usury.— Usury  in  the  note  on  which  a  judgment  at 
law  is  founded,  constitutes  no  ground  for  equitable  relief  against  the 
judgment,  unless  a  sufficient  excuse  is  shown  for  the  failure  to  make 
the  defense  at  law <19S 

7.  Same,  on  account  of 'surprise,  accident,  mistake,  or  fraud. — A  party  who 
Beeks  equitable  relief  against  a  judgment  at  law,  on  grounds  which 
were  available  as  a  defense  at  law  ;  and  who  simply  shows  that  he  had 
a  valid  defense  to  the  action,  and  a  sufficient  excuse  for  his  failure  to 
be  present  at  the  trial  term,  at  which  the  judgment  was  rendered  ;  but 
fails  to  show  that  he  had  employed  counselor  summoned  witnesses,  or 
taken  any  other  steps  to  defend  the  action,  although  it  was  pending 
more  than  six  months  before  the  judgment  was  rendered, — does  not  re- 
lieve himself  from  the  imputation  of  negligence,  and,   consequently,  is 

m  t  entitled  to  relief 498 

8.  Same,  on  account  of  irregular  affirmance  on  certificate. — The  affirmance  of  a 
judgment  by  the  supreme  court,  ou  ceitificatc,  nt  the  term  next  preced- 
ing fiat  to  which  the  appeal  is  taken,  may  be  corrected  on  motion,  and, 
consequently,  furnishes  no  ground  for  equitable  relief  against  the  judg- 
ment  493 

9.  Partition;  liability  fir  rents,  and  co  for  improvements. — In  a 
chancery  suit  for  the  partition  of  lands,  by  analogy  to  the  rule  pre- 
scribed by  statute  for  real  actions  at  law,  (Code,  £  2216,)  a  defendant, 
who  holds  possession  under  color  of  title,  in  good  faith,  will  not  be 
charged  w.th  rent  for  more  than  one  year  before  the  commencement  ol 
the  suit  ;  and  he  will  be  allowed  compensation  for  the  value  of  improve- 


INDEX. 731 

CHANCERY -continued. 

nv.Mit]  mule  by  him  during  such  possession,  not  exceeding  the  amount 

of  rents  charged  against  him. — Ormond  v.  Martin 62<> 

10.  Partner  — Although  the  defen  1-  ■ 
ants  may  n9t  have  committed  such  acts  of  misconduct,  or  been  guilty  of 
such  willful  violation  of  the  terms  of  the  contract,  as  would  authorize  a 
court  of  (-quity  to  decree  a  dissolution  of  the  partnership  for  that  cause; 
yet  a  dissolution  will  be  decreed,  where  it  appears  that  tbejr  refuse  o 
carry  out  one  of  the  terms  of  the  articles  of  partnership,  ami  insist  that, 
in  order  tocooduot  the  partnership  business  successfully,  that  stipula- 
tion must  be  either  changed  or  disregarded  :  that  they  have  refu/ed  to 

the  complainants,  on  matters  connected  with  the  pa  t- 
ncrship  business;  that  the  state  ol  feeling  between  the  parties  justifies 
the  r;  d,  that  the  joint  business  can' be  no  longer  prosecuted 
to  the  if  all  the  partners;  that  there  is  no  partner- 
ship property  rhich  might  be  sacrificed  by  a  sale,  and  th  it  a  dissolu- 
tion would  not  probably  inflict  any  material  injury  on  either  party. — 
Meaner  v.  Cox,  B  ■ainard  &  Co 15C 

11.  Same  ;  ju  dation  providing  for  referenct  to  urbi- 

ulation  in  articles  of  partnership,  providing  tor  a  sub- 
til to  arbitration  of  all  matters  of  controversy   which  may 
among  the  partners,  does  not  take   away  the  juris  action  of  equity  to 

decree  a  dissolution 156 

(rust  not  enforced. — A  court  of  equity  will   not   en- 
force,  Kgai  n  tor  or  bis  personal  representative*  a  purely  vol- 

untary executory  trust  in  favor  of  a  grand-child. — Borneo  v.   K 

Adm'r 501 

:!  contract. — A  court  of  equity  will  not  de- 
cree the  spei  ii'.e  execution  »f  a  contract  which  is  illegal  and  void,  he- 
cause  i  of  the  policy  of  the  public  land-laws,  although 
the  party  ask  tug  it  is  in  possession  ofthe  land,  and  baa  made  valuable 

imr>i  Smith  t.  Jebnaon 562 

try  of  legacy. — Where  a  residuary  1« 
ting  a  debt  due  from  the  testator  to  the  leg 
thai  be  had  made  an  unauthorized  sale  oi 
int<  i  ,  t  of  land,  to  be  deducted  from  the  amount  of  the  I  g- 

■■  infants,  and  consequently,  ineai  able 
u  sale, — the  chancery  court  alone  cao  ma 
i,  and  i--,  therefore,  the  appropriate  forum  for  the  set- 
•  Ttaiument  of  the  legacies.— Bush  and 
W  i ;  :V21 

II. 

15.    II  — .The  beirs-at-law  of  tin 

ition,  he  having  d  d  intes- 
tate, ..■  ,  lied  by  tbc  judgment 
deb  Hcin 

It.    W 
and  who  tie  bill  pia;  d  to  anew 


INDEX. 

CHANCERY — CONTESTED. 

party  defendant,  notwithstanding  the  want  of  appropriate  allegations 

showing  his  interest  in  the  litigation 43> 

17.  Sufficiency  of  service. — Where  one  of  the  defendants  was  described  in 
the  original  hill  as  Charles  T.  Cleveland  ;  and  the  sheriff  returned  the 
subpeona  "  executed  on  Charles  IT.  Cleveland,  and  Charles  T.  Cleveland 
not  found" ;  and  the  bill  was  afterwards  amended  by  substituting  //.  for 
T.  as  the  initial  letter  of  the  middle  name, — held,  that  the  service  was 
sufficient,  and  that  the  variance  was,  at  most,  an  immaterial  misdescrip- 
tion.— Cleveland  v.  Pollard 481 

18.  Service  of  process  on  infant. — Personal  service  of  process  on  an  infant, 
who  is  under  fourteen  years  of  age,  is  irregular. — Bondurant  v.  Sib- 
ley's Heirs 48» 

19.  Appointment  of  guardian  ad  litem  for  infant  defendant.— The  appointment 
of  a  guardian  ad  litem  for  an  infant,  who  is  not  at  the  time  a  party  to 
the  suit,  is  a  nullity  ;  but.  after  the  infant  has  been  made  a  party,  the 
appointment  of  a  guardian  erf  litem  for  him,  even  if  made  without  any 
previous  service  of  process,  and  otherwise  irregular,  is  voidable  mere- 
ly, and  not  absolutely  void  ;  yet  such  irregular  appointment,  although 
it  will  work  a  reversal  on  error  of  a  decree  against  the  infant,  and  may 
be  vacated  by  the  chancellor  on  motion,  is  valid  until  reversed  or  set 
asid«;  and  the  subsequent  appointment  of  another  guardian,  while  the 

for  mer  is  unrevoked,  is  void 489 

20.  Amendment  of  bill. — Under  the  act  of  Feb.  8,  1858,  "  amendatory  of 
proceedings  in  chancery,"  (Session  Acts,  1857-8.  p.  230,)  any  amend- 
ment of  a  bill,  either  as  to  parties  or  averments,  which  may  be- 
come necessary  to  meet  the  justice  of  the  case,  or  to  meet  any  state  of 
the  proof  that  will  authorize  relief,  must  be  allowed  by  the  chancellor, 
upon  such  terms  a,s  he  may  deem  just  and  equitable;  but  <0he  statute 
does  not  authorize  the  allowance  of  an  amendment,  which  would  con- 
vert the  bill  of  the  wife  into  the  bill  of  the  husband,  and  enable  him  to 
assert  a  claim  barred  by  the  statute  of  limitations. — King  and  Wife  v. 
Avery * 124 

21.  Same ;  filing  without  leave,  and  waiver  of  irregularity. — An  amended  bill, 
or  matter  of  amendment  brought  forward  in  a  bill  of  revivor,  will  be 
stricken  out  on  motion,  if  filed  without  leave  previously  obain  d  ;  but, 

fjif  no  such  motion  is  made,  and  answers  are  afterwards  filed,  treating 
the  amendment  as  properly  made,  aud  it  is  recognized  and  acquiesced 
ia,  both  by  the  parties  and  by  the  chancellor  the  appellate  court  will 
consider  the  irregularity  as  waived. —  Bondurant  v.  Sibley's  Heirs  ....  489 

22.  Statute  of  limitations  to  amended  ML — If  a  bill  is  filed,  by  mistake,  in  the 
tame  of  the  wife  as  a  feme  sole,  to  recover  her  interest  in  slaves  which 
accrued  to  her  before  marriage,  and  which  vested  in  the  husband  by 
virtue  of  his  marital  rights  ;,and  an  amended  bill  is  afterwaid9  filed,  in 
the  name  of  husband  and  wife,  after  the  statute  of  limitations  has 
barred  the  husband's  right  of  action,— the  statute  is  a  bar  to  the  relief 
sought,  although  the  statutory  bar  was  not  complete  when  the  original 

bill  of  the  wife  was  filed. — King  and  Wife  v.  Avery 124 

23.  Multifariousness. — A  bill,  filed  by  a  widow,  jointlv  with  her  only  child 
by  her  first  husband,  against  the  administrator  and  heirs-at-law  of  her 


INDEX, 733 

CH  ANCERY— CONTINUED. 

second  husband,  asking  an  account  of  the  hire  of  coram  slaves,  in 
which  the  widow  had  a  life-estate  at  the  time  of  her  first  marriage,  dur- 
ing the  period  of  her  second  husband's  possession  of  th«m,  a  partition 
of  the  slaves  between  her  and  her  child,  and  the  recovery  of  her  distri- 
butive share  of  her  second  husband's  estate,— is  multifarious,  since  it 
asserts  separate  and  distiuct  rights,  in  which  the  complainants  have  no 
community   of  interest.— Bean  v.  Bean's  Adm'r 205  . 

24.  Dismissal  for  multifariousness.—' Although  the  chancellor  seldom  should, 
he  nevertheless  may,  sua  spottte,  dismiss  a  bill  for  multifariousness  ;  and 
if  the  objection  really  exists,  the  appellate  court  will  not  reverse  his 
decree 265- 

26.  Variance  between  allegations  end  proof.— The  bill  alleged,  tha  the  slave 
in  controversy,  in  which  the  complainant  claimed  a  separate  estate 
under  a  Contract  between  her  hu  band  and  one  J.,  was  sold,  conveyed, 
and  delivered  by  her  husband  to  said  J.,  in  consideration  of  the  latter'a 
agreement  to  become  surety  for  him  in  a  certain  law-suit,  and  to  pay 
whatever  judgment  might  be  recovered  aga'nsthim  ;  "and  that  what- 
ever might  be  left  of  the  value  of  the  negro,  and  her  hire,  after  satisfy- 
ing the  judgment  that  might  be  recovered  against  B.  (the  husband),  and 
the  girl  herself,  if  she  was  not  taken  io  satisfy  the  judgment,  J.  was  to 
convey  to,  and  settle  upon  complainant,  in  her  own  right,  and  as 
her  own  sole  and  separate  estate,  and  to  her  heirs."  The  proof  was, 
that  B.  delivered  the  flare  to  J.  to  iudemuify  him  against  his  liability 
as  surety  for  the  costs  of  the  law-suit,  "upon  condition  that,  if  the  suit 
should  go  against  B,  the  negro  was  to  be  sold,  and  the  proceeds  of  sale 
to  be  first  applied  lo  the  payment  of  the  costs  of  the  suit,  if  necessary, 
aud  the  residue,  if  any.  to  be  paid  over  to  the  complainant ;  but.  in  the 
event  that  B.  gained  the  suit,  the  negro  was  to  be  put  in  the  possession 
of  the  complainant,  as  her  own  and  separate  property,  and  J.  was  to 
trausfer  to  her  all  the  title,  interest  and  claim  that  he  had  to  the  negro, 
for  her  separate  use  and  benefit."  Held,  that  there  was  a  fatal  variance 
between  the  allegations  and  proof.—  Burns  v.  Hudson 321 

20.  Same.— So,  where  the  bill  alleged,  that  J,  in  pursuance  of  his  pre- 
vious contract  with  B.,  verbally  sold  and  delivered  the  sjave  to  the 
complainant  as  her  s  parate  estate,  in  consideration  of  her  promise  to 
secure  and  indemnify  him  against  his  liability  as  surety  for  B.  in  the 
law-suit ;  while  the  proof  only  showed,  that  he  delivered  the  slave  to 
her,  and  said  that  he  made  no  further  claim  to  the  slave, — the  variance 
was  held  fat-al : '-1 

07.  Same,— &0,  where  the  bill  alleged,  that  the  complainant  afterwards 
delivered  the  eiave  to  the  defendant,  upon  his  promise  and  agreement 
to  indemnify  J.  against  his  liability  as  surety  for  B.,  to  satisfy  whatevot 
judgment  might  be  recovered  against  B.,  to  keep  the  slave  hired  out  »t 
B  •pecified  price,  to  return  her  to  the  complainant  after  it  waPhsrer- 
tained  what  he  had  to  pay  on  the  Judgment  against  B.,  if  the  negro  was 
not  taken  to  satisfy  the  judgment,  and  to  account  for  her  hire;  while 
the  proof  thawed,  that  the  defendant's  agreement  was,  totnko  the  place 
of  J.  as  surety  for  B.,  and  to  dispose  of  the  slave,  at  tht  termination  of 


734  INDEX. 

CHANCERY— CONTINUED. 

the  suit,  in  like  manner  as   J.   was  to    have  disposed  of  her   under  his 
agreement  with  B..  as  above  stated,— the  variance  was  held  fatal 321 

28.  Dismissal  without  prejudice. — The  complainant  in  thjg  case  being  a 
married  woman,  suing  by  her  n>xt,  friend,  and  there  being  a  fatal  vari- 
ance between  the  allegations  and  pi  oof,  the  bill  was  dismissed  without 
prejudice . . '. 321 

29.  D  ■  want  of  prosecution. — Wber?  the  complainant  refuses,  after 
his  bill  l.as  been  pending  for  several  ye«rs,  to  pursue  the  course  sug- 
gested by  the  chancellor,  and  which  is  the  only  proper  course,  to  bring 
in  a  party,  who,  thoagh  made  a  defendant,  has  not  beeii  brought  before 
the  court,  the  bill  may  be  dismissed,  on  motion,  for  want  of  profccu- 
tion  ;  and  the  complainant  cannot  excuse  his  negligence  in  failing  to 
proceed  against  the  absent  defendant,  on  the  ground  that  he  was  not  a 
necessary  party  to  the  bill.  Where  the  complainants  are  infants,  suing 
by  their  next  friend,  the  no  ore  usual,  and,  ordinarily,  the  proper  prac- 
tice, is  to  remove  the  next,  friend;  yet,  if  the  chaucellor,  in  the  exer- 
cise of  his  discretion,  dimisses  the  bill,  the  appellate  court  will  presume 
that  lie  did  so  because  the  interests  of  the  infants  did  not  Require  a  fur- 
ther prosecution  of  the  suit. — Bonuurant  v.  Sibley's  Heirs 489 

30.  Dissolution  of  injunction  irithoiU  dismissal  of  bill. — An  injunctio  >  may 
properly  be  dissolved  for  want  of  equity,  where  the  allegations  of  the 
bill  are  not  sufficient  to  authorize  the  interference  of  the  court  by  in- 
junction, although  the  bill  may  be  retained  for  other  relief. — H  irrison 

v.    McCrary   619 

31.  Action  at  law  in  suits  for  partition. — The  act  of  February  6,  1858,  "  (o 
regulate  the  practice  in  partition  suits,"  (Session  Acts,  1857-58,  page 
294,)  dispenses  with  the  necessity  of  an  action  at  law,  to  settle  a  contro- 
verted question  of  legal  title  arising  in  a  chancery  suit  for  the  parti- 
tion of  lauds— Ormond  v.  Martin 526 

CHARGE  OF  COURT. 

1.  Al  . — An  abstract  charge,  or  one  which  is  not  shown  by 
the  record  to  have  been  predicated  on  some  evidence  before  the  jury, 

is  properly  refused. — McGuire  t.  The  State 69 

2.  Same. — A  charge  to  the  jury  cannot  be  considered  abstract,  when  the 
bill  of  exceptions  recites  evidence  tending  fo  show  the  existence  of  the 
facts  on  which  it  is  predicated  ;  and  if  the  record  fails  to  show  such 
evidence.,  the  appellate  court  will  presume  that  a  charge  given  wa«  not 
abstract,  when  the  bill  of  exceptions  does  not  purport  to  set  out  all  the 
evidence. —  McLemore  v.  Nuckolls ; 591 

3.  a  uctkm  and  effect  of  other  charges, — Where  the  court,  after 
having  charged  the  jury  orally,  gave  several  charges  in  writing  at  the 
request  oi  the  defendant,  aud  then  added,  "that  the  jury  would  receive 

,the  written  charges,  in  connection  with  the  charges  and  law  as  giv?u 
and  abounded  orally  .from  the  bench,  as  the  law  of  the  case,"- 
that  this  was  not  erroneous. — Pcott  v.  The  State 23 

4.  Charge,  if  correct,  must  he  ghen  as  asked  —  Since  the  statute  (Code, 
g  235.5  )  ii*  per.itively  requires,  that  a  charge  to  the  jury,  if  correct  and 
not  abstract,  must  be  given  in  the  language  in  which  it  is  asked,  the 


INDEX. 735 

-CHARGE  OF  COURT— coktinuko. 

do:trine  of  err  >r  without  injury  cannot  be  applied  to  the  refusal  of 
such  charge,  although  the  legal  propos'i  iou  embraced  in  it  was  substan- 
tially enunciated  in  a  other  charge  given  by  the  court. — Polly  v.  McCall,  246 

5.  Oh  by  jury  on  retirement. — Wheu  charges 
to  the  jury,  in  wr  ting,  are  giveu  by  the  court  at  the  request  of  a  party, 
it  is  the  duty  of  the  cou.t  to  allow  the  jury  to  take  such  charges  with 
them  on  their  retirement,  and  the  refusal  to  do  so  is  err.  r  :  the  statute 
(Code,  §  2355)  is  mandatory,  and  not  simply  directory.— Miller  v. 
Hampton 357 

<5.  0}  fury. — A  charge  asked,  which  is  calculated  to  confuse 
and  mislead  the  jury,  is  properly  refused. — Til  man  v.  Chad  wick   T;32 

7.  Same. — In  an  action  to  recoyerdam  g  s  for  a  breach  of  promise  of  mar- 
riage, a  charge  which  predicates  th  i  plaintiff's  right  to  recover  on  the 
proof  of  a  promise  and  breach  thereof,  and  entirely  disregards  the  evi- 
dence adduced  by  the  defendant  tending  to  show  a  justification  of  the 
breach,  is  erroneous. — Espy  v.  Jones 454 

'8.  Charge  invading  province  qf  j'wy. — Where  it  is  necessary  to  infer  an  ad- 
ditional fa  t,  not  proved,  from  the  f.cts  which  are  proved,  a  general 
charge  on  the  evidence  is  uu  iuvasion  of  the  province  of  the  jury,  and 

is,  consequently,  erroneous. — W  ird  v.  The  State 65 

Also,  Smith  v.  The  State -. 83 

M.  &C   Railroad  Co.  v.  Bibb 630 

Barker  v.  Bell 375 

9.  Same. —  Where  the  fact  of  agency  is  controverted,  and  there  is  any 

evidence  tending  to  establish  it,  the  sufficiency  of  that  evidence  is  a 

ion  for  the  jury,  under  appropriate  inst:  actions  from  the  court; 

and  a  charge,  asserting  that  the  evidence  is  not  sufficient  to  prove  the 

agency,  is  erroneous.— Bank  of  Montgomery  v.  Planuett's  A  m'r 178 

CODE   OF  ALABAMA. 

I.  g  891,  subd,  17.  Tux  on  auction  sales.— State  v.  Lee  &  Norton 102 

2T  §§  397-99.  Keeping  nstaurat  without  license  — lluttenstein  v.  The  State. .     64 

3.  §jj  3H9-400.  Sale  of  slave  by  unlicensed  negro-trader.  ^ —  McGehee  v. 
Bump 5S0 

4.  i:  1U5G-5D.  I  Irituom  liquors.  —Thompson  v.  The  State 58 

5.  §1359.    Widow's  quarantine. — McAllister  v.  McAllis'er 366 

6.  §j5  1300-72.   Assignment  of  dower  by  probate  court. — Smith  V.  Johnson.". .   562 

7.  §  1651.  — Ragland  &  Howell  v.  Wynn's  Adm'r 270 

Also,  Boy  kin  k  McRa-  t.  Dolhonde  vt  Co 502 

8.  ;  ■■  of  partial  intestacy. — Greene's  Ex'r 

v.  Speer  and  Wife. .  * 450 

-Jonee  v.  Jones'  Executor 574. 

10.   g§  1667-8,  17¥>.    '                                     .—  Watson  v.  Co  liiis'  Adm'r. .   515 
Also,  Ward  v.  Cameron's  Adarrs 022 

II,  — Becue's   Jdm'r   v.    Phillips, 
rins 310 

\  im'r 556 

12.  <ute  of  non-claim, —  Bank  of  Montgomery  v.  Planoctt's 
Adm'r '. 178 


736 INDEX. 

CODE  OF  ALABAMA— continued. 

II.  §  19S3.  Husband's  power  over  wyjf's  statutory  separate  estate. — Patterson 

t.  Flanagan 427 

Also,  Alexander  v.  Sawlsbury 436 

14.  §§  2836,  2132.  Action  by  guardian. — L  ngniire  v.  Pilkington 293 

15.  §  2129.    Who  is  proper  party  plaintiff.— Bedell' 's  Adtu'r  v.  Smith 548 

16.  §^2235.  Assignment  of  breaches  in  complaint. — Stone  k  Be6t  v.  Watson..    236 

17.  §§  2236-37.  Requisites  of  plea.— Wynne  v.  Whisenant 282 

Also,  Hopkiuson  v.  Shelton 303 

18.  §  2240.  Set-off'.—  Kannady  v.  Lambert 314 

Also,  Wood  &  Kimbrough  v.  Fowler 292 

19.  §  2253.  Demurrers. — Owsley  v.  Montgomery  k  West  Point  Kailroad 
Company 485 

20.  §  2255.  rieading  over  no  waiver  of  error. — Williams  v,  Ivey ,    220 

21.  §2284.  Execution  of  void  process,  regular  on  its  face. — Wilson  v.  Sawyer,  559 

22.  §  2290.  Competency  of  transferror  as  witness fnf  transferree. — Coate  v. 
Coate's  Adm'r 627 

28.  §  2302.  Competency  of  witness  as  affected  by  interest. — McLemore   V? 

Nuckolls '.. .   591 

Also,  Coate  v.  Coate's  Adm'r 627 

24.  §  2313.  F roof  of  demand  by  plaintiff 's  own  oath. — Crymes  v.  White  & 
Johnson 473 

25.  §§  2318-28.  Depositions.— McGill  v.  Monette 285 

Also,  Douglass  v.  M.  &  W.  P.  Railroad  Co .571 

26.  §§  2330-36.  Discovery  at  law. — Crymes  v.  White  k  Johnson 473 

27.  §§  2354-56.  Establishing  bill  of  exceptions  in  appellate  ecurt.— Garlington 

v.  Jo.ies 196 

2$.  §  2355.  Charges  to  jury.— Polly  v.  MeCall .* 246 

Also,  Miller  v.  Hampton -.  357 

29.  §  2357.  Nonsuit,  with  bill  of  exceptions. — Douglass  v.  M.  &  W.  P.  Rail- 
road Co 666 

30.  §  2358.  Execution  of  bill  of  exceptions. — Union   India-Rubber  Co.   v. 
Mitchell 517 

31.  §  2365.  Nonsuit  on  verdict  for  less  than  $50. — Wood  &  Kimbrough  v. 
Fowler 292 

32.  \  2403.  Amendment  of  complaint. — Jtmison  v.  Smith » 140 

Also,  Longmire  v.  Pilkington 293 

S3.  §§  2407-08.  Rehearing  at  lata. — Davis  v.  McCampbell 53S 

34.  §  2462.  Prcpcrty  exempt  from  execution. — Cook  v.  Babe 371 

85.  §2466.  Action  against  office/  ^vying  on  property  exempt  from  execution. — ' 

Cook  v.  Baine 371 

3«.  §  2481.  Limitation  of  actions. — Polly  v.  MeCall. 246 

Also,  McGill  v.  Mqmette 285 

37.  §§2696-97,2628,  2632.  Summary  proceeding  against  tax-collector.— Ware 

v.  Greene ...  383 

38.  §  2779.  Examination  of  parties  as  witnesses,  in  uppcal  case  from  magit- 
trateh  court.— Ala.  <fc  Tenn.  Rivers  Railroad  Co.  v.  Oaks  &  Mills 625 

S9.  §  2956.  Equitable  attachment.— Smith  v.  Moore 342 

40.  §  3032.  Damages  on  affirmed  judgment . — Lawrence  v.  Jones 625 

41.  §3041.  Security  for  costs  of  appeal. -—Davis  v.  McCampbell.. 5S8 


.INDEX. 787 

CODE  OF  ALABAMA— contikted. 

42.  Forms  of  complaint. — Wi'liams  v.  Ivey ISO,  220 

Also,  Owsley  v.  51.  &  W.  P.  Railroad  Co 485 

43.  £3  3114-15.     Willful  or  malicious  mischief. — Johnson  v.  The  State 72 

44.  g§  S158,  3165.     Forgery.— McGuire  v.  The  State 09 

45.  jg  3170.     Larceny  in  dwelling-  /io;w.— Point  v.  The  Stile 54 

46.  §  3231.    Living  in  adultery. — Maull  v.  The  State 68 

47.  §  3243.     Gaming.— Smith  v.  The  State S4 

48.  §  32:>6.     Gaming  with  slave. — Ward  v.  The  State f.5 

49.  3'  3257.     Disturbing  religious  worship. — Kinney  v.  The  State 104- 

Also.  Harrison  v.  The  State 61 

60.  §§  3280-81.  Selling  liquor  to  student  or  minor.— Merkle  v.  The  State. . .     45 

61.  g§  8297-98.     Negligent  treatment  of  slaves.— Oheek  v.  The  State 107 

52.  §  8812.   Homicide  of  white  person  by  skive— Scott  v.  The  State 23 

Also,  I^hara  v.  The  State 93 

53.  §3361.     Sureties  to  keep  peace.— Es  jporte  Coburn 117 

64.  §  3  '.78.     O-uh  of  petit  jury.— MctJuirs  v.  The  State 69 

65.  §  3570.     Service  of  copy  of  indictment  un  prisoner. — Scott  v.  The  Stat. 

66.  §§  3588^85.  i  of  juror. — Aaron  v.   The  State 12 

Also,  Murphy  v.  The  State 48 

f>7.  i  3600.     Conviction  on  testimony  of  accomplice. — Sin  th  v.  The  Stite. ...  84 

Also,  Bass  v.  The  State 87 

58.  §  3614.     Change  of  venue.— Aaron  v.  The  State 12 

Also,  Scott  v.  The  State 23 

59.  §  8931.  Removal  of  convicts  to  penitentiary  ;  sheriff'*  fees. — Greece  v. 
McGehee 119 

COMMON  CARRIERS.— Sec  Bailment. 

COMMON  LAW. 

1.  Presumed  to  exist  in  oilier  States.— In  the  absence  of  evidence  to  the  con- 
trary, the  courts  of  this  State  will  presume  that  the  common  law  pre- 

Tails  in  other  States. — Conuor  v.  Trawick's  Adm'r 258 

Also,  Berum  v.  King's  Adm'r 534 

CONFLICT  OF  LAWS. 

1,  As  to  rate  of  interest. — A  promissory  note,  made  in  this  Slate,  but  paya- 
ble in  New  Orleans,  bears  iuterest  according  to  the  laws  of  Louisiana, 
unlees  a  different  rate  is  specified  in  the  note  i tsel f . — Iluut's  Executor 
v.  Hull 634 

"CONSCRIPT  LAWS."— Sec  Constitutional  Law. 

CONSTITUTIONAL  LAW. 

1.  In  summary  remedy  of  cor p 

•  —A  summary  remedy  against  dcl&ulting  stockholders,  given 
to  a  corporation  by  the  act  of  its  incorporation,  is  no  part  of  its  corpo- 
rate tran -hUes,  and  may  be  altered  or  modified  by  the  legislature  at 
pleaeure. — £x/v;Vfc  North-east  and  South-west  Alabama  Railroad  Co. 

48 


738        INDEX.  • 

CONSTITUTIONAL  LAW— continued. 

2.  Sufficiency  of  indictment — An  indictment  under  the  act  of  1868,  "to 
prevent  nuisances  and  illegal  trafficking  with  slaves,"  (Session  Acts 
1857-8,  p.  285,)  which  charges  that  the  defendant  "kept,  or  was  engaged 
in  th^  keeping  of,  a  public  nuisance,  by  h  vving  permitted  slaves,  or  free 
persons  of  color,  habitually  to  visit,  assemble,  or  stop  at,  or  loiter  about, 
the  house  or  prenvses  kept  or  occupi.-d  by  him," — is  sufficient,  bring  in 
the  form  authorized  by  the  third  section  of  the  act,  and  is  not  violaive 

of  any  constitutional  provision. — Schwartz  v.  The  State 75 

3.  Jurisdiction  of  Slate  courts  to  discharge  person  in.  custody  for  violation  of 
criminal  laws  of  United  State.-. — The  courts  of  this  State  have  now  (July 
9,  1861,)  no  jurisdiction  to  discharge  lrom  custody  a  person  who  was  ar- 
rested prior  to  the  passage  of  the  ordinance  of  secession,  charged  with 
a  violation  of  the  criminal  laws  of  the  United  States  within  the  limits 
of  the  State  of  Virginia ;  the  question  of  his  right  to  be  discharged,  or 
his  transfer  to'the  proper  court  in  Virginia  for  trial,  apperiaining  to  the 
jurisdiction  of  the  district  court  of  the  Confederate  States — Lx  parte 
Kelly 91 

4.  Can.  titutiona/ity  of  conscript  laws. — The  several  acts  of  congress,  com- 
monly called  the  "conscript  laws,"  (0.  S.  Statutes  at  Large  of  1st  Con- 
gress, 1st  session,  p.  29;  ibl  2d  session,  61,)  are  constitutional.  {Per 
Stone,  J.)— Ex  parte  Hill,  in  re  Willis. liST 

5.  Jurisdiction  of  State  courts  to  discharge  enrolled  conscript  from  custody  of  0 
ftder.i'c  Stain  officer. — The  courts  and  judicial  officers  of  the  State  have 

no  jurisdiction,  on  habeas  corpus,  to  discharge  from  the  custody  of  an  en- 
rolling officer  of  the  Confederate  States,  on  the  ground  of  physical  in- 
capacity for  military  service,  persons  who  have  been  enrolled  as  con- 
scripts under  the  several  acts  of  congress 637 

6.  Same. — On  petition  for  habeas  corpus,  by  a  person  who,  being  liable  to  • 
military  service  under  the  act  of  congress  approved  April  16th,  1862, 
commouly  called  the  "first  conscript  law,"  procured  and  placed  in  his 
stead  a  substitute,  and  was  thereupon  discharged  ;  but,  after  the  passage 
of  the  "second  conscript  law,"  approved  September  27th,  1862,  whs 
again  arrested  by  the  enrolling  officer,  on  the  ground  that  his  discharge 
had  become  inoperative,  because  his  substitute  was  personally  liable  to 
service  under  the  latter  law, — the  State  court  or  judge  to  whom  the  ap- 
plication for  the  writ  is  made,  bas  jurisdiction  to  determine  the  question 
of  fact,  whether  the  petitioner  placed  in  his  stead  a  substitute,  and  was 
thereupon  discha-ged  ;  and  also  the  question  of  law,  whether  such  dis- 
charge exempted  the  petitioner  from  liability  to  service  under  the  lat- 
ter law,  his  substitute  being  within  the  conscript  age  as  therein  speci- 
fied. (A.J.  Walker,  C.  J.,  dissenting.) — Ex  parte  Hill,  in  re  Armistead.   667 

7.  Same. — The  commandant  of  conscripts,  at  one  of  the  camps  of  instruc- 
tion, having  vacated,  on  the  ground  of  fraud,  a  discharge  procured  by 
a  person  who,  being  liable  to  military  service  under  the  "conscript  laws" 
of  congress,  had  furnished  a  substitute  in  his  stead';  and  the  decision 
of  the  commandant  having  been  approved  by  the  secretary  of  war, — a 
State  court  or  judge  has  no  jurisdiction,  on  habeas  corpus  or  otherwise, 
to  revise  and  control  the  action  and  decision  of  the  commandant,  at  the 
instance  of  the  person  whose  discharge  is  vacated,  on  the  ground  that 


INDEX.    739 

CONSTITUTIONAL  LAW— continued. 

ez-parte  affidavits  were  received  against  him  on  the  trial,  or  that  he  was 
not  notified  of  the  time  and  place  of  taking  testimony,  or  that  he  was 
not  allowed  an  opportunity  to  cross-examine  witnesses.  (R.  W.  Walker, 
J.,  dissenting*) — Ex  parte  Dudl-y 667 

8.  Liability  of  principal  to  military  service  under  "second  conscript  law",  having 
fhrnished  substitute  under  first, — The  9th  section  of  the  "first  conscript 

.  law"  of  congress  declaring,  that  persons  not  liable  to  military  service 
"may  be  received  as  substitutes  for  those  who  are,  under  such  regula- 
tions as  miy  lie  prescril>ed  by  t!ie  secretary  of  war";  and  the  geueral 
orders  (No.  37)  published  by  the  secretary  of  war  on  the  19t:i  .Vay, 
1S62,  providing,  in  reference  to  exemptions  procured  by  furnishing 
substitutes,  that  "such  exemption  is  valid  only  so  Ion*  as  the  said  sub- 
stitute is  legally  exempt," — a  person  who  was  liable  to  conscription  un- 
der said  1  iw,  and  who,  after  the  publication  Of  said  general  orchis, 
placed  in  his  stead  a  substitute,  who  was  between  the  ages  of  thirty -five 
and  forty  years,  and  thereupon  obtained  his  discharge,  became  again 
liable  to  conscription,  on  the  passage  of  the  ''second  conscript  law,"  and 
the  president's  call  for  men  beiween  the  ages  of  thiity-five  and  forty 
years  ;  and  the  same  principle  appl:es  to  persons  who  furnished  substi- 
tutes after  the  publication  of  the  general  order  (No.  64)  dated  Septem- 
ber 8,  18(5.',  which  declares,  that  "a  substitute  teconiiug  liable  to  con- 
scription renders  his  principle  also  liable."     (Per  tot  cur.) 667 

9.  Conscientious  scruples  against  bearing  arms,  as  ground  of  exemption  from  mil- 
itary service. — A  person  who  "conscientiously  scruples  to  bear  arms," 
may  claim  exemption  from  military  du'y,  under  the  provisions  of  the 
Stale  constitution,  (art.  iv,  militia,  §  2,)  upon  payment  of  an  equivalent 
for  personal  service ;  yet  he  is  not  entitled,  on  that  account,  to  exemp- 
tion troin  military  service  in  the  armies  of  the  Confederate  States,  un- 
less he  belongs  to  one  of  the  religious  denominations  specially  exempted 

by  the  acts  of  congress. — Ex  parte  Stringer   6C5 

10.  Liability  of  person  having  substitute  in  Confederate  army  to  service  in  Sta'e 
militia. — A  person  who,  being  liable  to  military  service  in  the  army  of 
the  Confederate  States  under  the' "conscript  laws"  of  congress,  pro- 
cured a  discharge  from  that  service  by  furnishing  a  substitute  in.  his 
stead,  is  nevertheless  subject  to  militia  duty  under  the  State  laws,  and 

le  to  the  draft  ordered  by  the  governor  on  the  17th  June,  1863, 
under  the  requisition  of  the  president  of  the  Confederate  States,  for 
seven  thouiand  troops  from  the  militia  of  this  State.— Ex  parte  Mc- 
Cant« ^ 716 

CONTRACT-. 

1.  Assent  -It  is  essential  to  the  validity  ef  a  contract  to  marry, 
that  them  should  he  reciprocal  promises  between  the  parties  ;  hut,  if  a 
man  makes  in  express  offer  or  promise  of  marriage  to  a  woman,  her 
acceptance  and  reciprocal  promise  may  be  established  by  proof  of  her 
conduct  and  actions  at  the  time,  as  well  as  by  express  words.  -Espy  v. 
Jones. 464 

2.  Jusfijicilion  of  breach. — If  a  mm  promises  to  marry  a  womau  whom  he 
believes  to  be  virtuous  and  modest,  and  afcrwards  discovers  that  Bhe  is 


740      ■  _    INDEX.  . 

OONTR  A.CTS  — C05JTINUKD. 

loose  and  immodest,  be  is  justified  in  breaking  Lis  promise;  but,  to  en- 
title liim  to  a  verdict  on  that  ground,  the  jury  must  be  satisfied  that 
the  pliiutdl  is  a  lo.;se  and  immodest  woman,  that  the  defendant  broke 
his  promise  on  that  account,  ami  that  he  did  not  know  her  character  at 
the  time  he  made  the  promise #454 

3.  Damages  for  breach. — Iu  an  action  for  a  breach  of  contract, — by  which 
plaintiff  agreed  to  serve  defendant,  in  the  capacity  of  an  overseer^  for 
the  term  of  one  year,  but  was  discharged,  without  fault  on  his  part,  be- 
fore the  expiration  of  the  year, — if  the  suit  is  commenced  before  the 
expiration  of  the  year,  the  plaintiff  can  only  recover  unliquidated  dam- 
ages for  the  breach  of  contract;  aud  it  c  mnot  be  assumed,  as  matter  of 
law,  that  the  stipulate!  wages  for  the  entire  year  would  be  the  measure 

of  damages. —Wright  v.  Falkner 231 

4.  Illegality  of  consideration. — If  the  consideration  of  a  note  is  partly 
illegal,  it  avoids  the  whole  note;  but  the  maker,  when  sued  on  the  note, 
inav  nevertheless  waive  the  illegality,  and  insist  on  a  failure  of  the  con- 
sider -tion  — Wynne  v.  Whisenant 282  • 

5.  Validity  of  contract  made  irith  slrnv. — A  promissory  note,  given  to  a 
sl'.w  .  for  money  borrowed  from  him  by  a  white  man,  is  void,  and  will 

not  BUbport  an  action. — Martin  v.  Reed 154 

6.  Same  — Although  the  sole  of  any  article  to  a  slave,  without  the  con- 
sent of  the  master,  specifying  the  article-,  is  a  penal  offense  under  the 
laws  of  this  Stilts  ;  yet,  if  the  contract  has  been  fully  executed,  and  the 
property  delivered  to  the  slave,  it  does  not  lie  in  the  mouth  of  a  third 
person,  when  sued  by  the  master  for  a  trespass  to  the  property,  to  al- 
lege the  illegality  of  the  contract — Sterrett's  Executor  v.  K:v  ter 404 

7.  Validity  of  contract  for  be  -•. — If  the  master  knowingly  per- 
mits his  slave  to  acqniro  money,  and  to  pay  it  out  to  a  third  person,  in 
a  fair  business  transaction,  be  cannot  afterwards  reclaim  it ;  bu^,  if  such 
third  person  receives  and  holds  the  moiv  y  for  the  benefit  of  the  slave, 
and  as  his  bailee,  and  it  is  afterwards  used,  without  the  knowledge  of 
the  master,  in  purchasing  the  slave  for  himself  from  the  master,  the 
contract  is  void,  and  does  cot  divest  the  title  of  the  master. — Webb  v. 
Kel'y 344 

8.  Gift  to  slave. — There  is  no  statute  or  rule  of  law  in  this  State,  which 
prohibits  a,  gift  of  old  clothe3.  or  other  articles  harmless  in  their  nature, 
to  a  slave,  without  the  knowledge  or  consent  of  his  master;  but  the 
title  and  possession,  on  the  delivery  cf  the  articles  to  the  slave,  must 

be  referred  to  the'master. — Devaughn  v.  Heath 523 

9.  Validity  of  contract  contravening  policy  cf  public  land-lau-s. — A.  contract 
between  A  and  B,  by  which  it  is  agreed,  that  the  former  shall  enter  a 
tract  of  land,  under  the  graduation  act  of  1854,  (10  U.  S.  Statutes  at 
Large,  574,)  in  his  own  name,  but  for  their' joint  use  and  benefit,  and 
that  the  latter  shall  furnish  the  purchase-money, — being  in  contraven- 
tion of  the  policy  of  that  stitute,  as  indicated  by  the  affidavit  required 

of  the  party  making  the  entry,  is  illegal  and  void. — Smith  v.  Johnson. .  502 

10.  Difference  between  sale  and  exchange  ;  validity  of  nale  of  slave  try  wdia- 
negro-trader. — A  contract  for  the  exchange  of  two  slaves,  of  unequal 
values,  is  not  converted  into  a  sale,  by  the  payment  of  a  mm  o!  money 


INDEX. 741 

CONTRACTS—'continoed. 
for  the  difl"  rence  of  value,  and  the  insertion  of  a  money  value  as  the 
consideration  in  the  bill  of  sale  ;  and  on  the  other  hand,  if  the  transac- 
tion was  really  a  sale  of  one  of  the  slave-',  which  was  void  bj  statute, 
(Code,  §§  :j09,  400,)becans  s  the  vendor  was  an  unlicensed  negro-trader, 
the  accepta"cc  of  another  slave,  In  part  payment  of  the  price,  could 
neither  change  the  nature  of  the  contract,  ner  render  it  valid.— McGe- 
hee  t.  Rump 680 

1 1,  Alteration  of  written,  by  mbsequ  mtract. — The  maker  and  holder 
of  a  promissory  note  may,  by  subsequent  verbal  agreement,  founded  on 
Sufficient  consideration,  change  the  rate  of  interest  which  it  hears  ;  yet 
the  holder  cannot,  in  a  suit  on  the  note  itself,  recover  on  such'modified 
coutract. — Hunt"s  Executor  v.  Hall 634 

12.  Implied  contract   of  lunatic. —  Au   adult   person, 'who    is  non   compos 

itis,  is  liable  ou  an  implied  contract  foir  necessaries  furnished  him, 
suitable  to  hi*  estate  and  condition  in  life;  and  where  uo  guardian  has 
been  appointed  for  him,  an  action  for  the  value  of  such  neccss  ries  inusl 
-arily  be  prosecuted  against  him  personally. — Ex  parte  Northing- 
ton  400 

CORPORATIONS. 

1.  Judicial  notio  ons  aichardnbh  corporation. — The  courts  of  this 
State  will  take  judic'nl  notice  of  the  fact,  that  the  society  of  free-ma- 
sons is  a  purely  charitable  corporal;  n. — Burdine  v.  Grand  Lodge  of  Al- 
abama   385 

2.  Competency  of  corporator  a$  juror,  and  «-s-  witness  for  corporation. — The  so- 
ciety of  free-masons  being  a  purely  charitable  corporation,  a  member 
of  the  Bdbiety  cannot  be  said  to  have  the  smallest  pecuniary  interest  in 
the  event  of  a  suit  to  which  the  society  is  a  party  ;  con  equently,  he  is 

a  competent  juror,  and  a  competent  witness  for  the  society 3S5 

3  Varianci  m  description  of  corporation. — The  society  of  free-masons  in 
this  State  being  incorporated  by  the  name  of  the  "Most  Worshipful 
Grand  Lodge  of  Ancient  Free-masons  of  Alabama  and  its  Masonic  Ju- 
risdiction," and  suing  by  that  name,  a  charter  granted  by  the  ''Grand 
Lodge  of  thi-  State  of  Alabama,"  authorizing  the  persons  to  wh<  in  it  is 
directed  "  to  form  themselves  into  a  regular  lodge  of  ancient 
free-masons,  by  the  name  of  Ymkville  Lodge  No.  131,"  sufficiently  ap- 
n  is-ii«'d  by  said  corporation,  and  the  misdescription 
not  amount  to  a  material  fiance 385 

4.  What  <itfi  m?  lie  against  corporation. — An  action  of  trespass  for  false  im- 
prisonmenl  HfS  agnin°t  a  corporation,  but  an  action  on  the  cac  for  a 
malicious  pro-ccution  does  not. — Owsley  v.  Montgomery  &  West  Point 
Railroad  Co 485- 

fi-  /  ctr  to  alter  summary  remedy  of  corporation  against  defaulting 

—  A  summary  remedy  against  defaulting  stockholders,  ^iven 
to  a  corporation  by  the  act  of  its  incorporation,  is  no  part  of  its  corpo- 
rate franchises,  and  may  be  altered  or  modified  by  the  legislature   at 

pleasure.—  Ex  par',?  N.  K.  &  S.  W.  Ala.  Railroad  Company 60S 

iity  of  railroad  company — Ed  an  action  against  a  railroad 
Company,  to  recover  the  value  of  horsej  run  over  and  killed  by  the  de- 

.    •    - 


742  INDEX. 

CORPORATIONS— coxtinitkd. 

feudant's  engines  and  cars,  if  the  evidence  simp'y  shows  that  the  horses 
were  run  over  a  ad  killed  by  a  train  of  cars,  and  that  the  engineer  in 
charge  of  the  train  failed,  at  the  time  the  accident  occurred,  to  comply 
with  the  requisitions  of  the  statute  as  to  blowing  the  whistle,  ringing 
the  bell,  reversing  the  engine,  &c,  (Session  Acts  1857-58,  p.  15,)  the 
court  is  not  authorized  to  charge  the  jury,  that,  if  they  bellve  the  evi- 
dence, they  must  find  for  the  plaintiff:  such  a  charge  is  an  invasion  of 
the  province  of  the  jury,  who  alone  could  infer  from  the  evidence  that 
the  damage  was  caused  by  the  engineer's  neglect  of  duty. — Men  phis  & 
Charleston  Railroad  Co.  v.  Bibb 680 

CRIMINAL  LAW. 

1 .  Homicide ;  admissibility  of  character  of  deceased,  as  evidence  for  prosecution. 
On  a  trial  for  murder,  the  prosecution  cannot  adduce  evidence  ot  the 
peaceable  character  of  the  deceased,  when  it  has  not  been  assailed  by 
the  prisoner. — Beu  v.  The  State 9 

2.  Same;  dying  declarations. — The  dying  declarations  of  the  deceased,  r<- 
specting  the  state  of  feeling  which  existed  between  himself  and  the 
prisoner,  are  not  competent  evidence  for  the  prosecution 9 

3.  Same;  confessions. — The  constable  who  bad  the  custody  of  the  prisoner, 
a  slave,  having  said  to  him,  ''  If  you  did  it,  you  had  better  confess  ;  it 
would  be  best  for  you  to  tell  the  truth;  truth  is  always  the  best  policy; 
but,  if  you  did  not  kill  him,  we  don't  want  you  to  say  so," — held,  that 
there  was  nothing  in  these  facts  to  show  that  the  prisoner's  confes- 
sions, subsequently  made  to  the  constable  in  the  same  conversation, 
were  elicited  through  the  influence  of  either  hope  or  fear  ;  and  r^.at  the 
confessions  were  admissible  evidence. — Aaron  v.  The  State 12 

4.  Same  ;  variance  in  name  of  deceased. — Where  the  indictment  alleged  the 
name  of  the  deceased  to  be  Louis  Boudct,  or  Boredet,  whil^  his  real 
name  was  proved  to  be  Louis  Burdd,  and  to  be  sometimes  pronounced 
as  if  spelt  Bouredct ;  and  the  circuit  court  thereupon  charged  the  jury, 
"  that  if  hie  real  tame  was  the  same  4in  sound  as  if  writteu  Boudtt  or 
Boredet,  or  so  nearly  the  same  that  the  difference  would  be  but  slight, 
or  scarcely  perceptible,  and  he  would  have  been  readily  known  by  his 
name  being  pronounced  as  if  written  Boudet  or  Boredet,  then  the  vari- 
ance would  not  avail  the  defendant," — held,  that  the  ruling  of  the  court 
was  substantially  correct »«^ 12 

5.  Same ;  presumption  of  malice. — The  charge  of  the  court  to  the  jury  in 
this  case,  as  to  the  presumption  of  malice  in  cases  of  homicide,  cou- 
strued  in  connection  with  the  fact^indubitably  established,  that  the  kill- 
ing was  perpetrated  with  a  ,  deadly  weapon,  held  to  contain  no  error 
prejudicial  to  the  prisoner. — Murphy  v.  The  State 48 

%.  Homicide  of  white  person  by  slave. — If  a  slave  kills  a  white  person,  believ- 
ing him  at  the  time  to  be  a  runaway  negro,  and  being  justified  by  the 
attendant  circumstances  in  the  belie),  the  degree  of  the  homicide — 
whether  murder,  voluntary  manslaughter,  or  involuntary  manslaughter 
—is  the  same  that  it  would  have  been  if  the  person  slain  had  been  a 
runaway  negro  ;  but  the  punishment  of  the  offense  is  that  prescribed 


INDEX. 743  " 

CRIMINAL  LAW—continukd. 

for  sttcb  (leg  ee  of  homicide  when  perpetrated  by  a  slave  on  a  white 
persoji.— Isluun  v.  The  State   93 

7.  Same;  charge  to  jury.  as  to  constituents  of  offense. — On  the  trial  of  a  slave, 
.under  an  indictment    for  the  murder  or   voluntary  manslaughter  of  a 

white  person,  a  charge  to  the  jury,  asserting  that,  "  if  they  believed  the 
defendant  struck  the  deceased  with  no  expectation  or.intention  to  kill 
him,  and  the  stroke  did  kill  him,  the  death  was  acc:deutal,  and  the  de- 
fendant should  be  acquitted," — is  erroneous,  since  it  assume-!  that  the 
defendant  would  be  entitled  to  an  acquittal,  although  the  blow  was  giv-  ^ 
en  with  the  intention  to  do  great  bodily  harm.— Scott  v.  The  State 23 

8.  Same;  sufficiency  of  verdict. — Under  an  indictment  against  a  slave, 
Charging  him,  in  separate  counts,  with  the  murder  and  voluntary  man- 
slaughter of  a  white  peison,  a  general  verdict  of  guilty  is  sufficient  to 
author  ze  a  judgment  aud  sentence  of  death 23 

9.  Same;  mime. — Under  an  indictment  charging  a  slave  with  the  volunta- 
ry manslaughter  of  a  white  person,  a  conviction  may  be  had  for  invol- 
untary manslaughter  in  the  conunissioa  of  an  unlawful  act  — Isham  v. 
The  State 03 

10.  Forgery ;  constituents  of  offense. — Under  an  indictment  for  forgery,  a 
conviction  may  be  had  on  proof  that  the  prisoner,  with  intent  to  de- 
fnud,  uttered  and  published  as  true  a  forged  instrument,  knowing  it  t» 

be  forged.— McGuire  v.  The  SUtc 69 

cription  of  forged  instrument  in  indictment. — "An  instrument 
of  writing,  purporting  to  be  an  order,  drawn  by  Sister  Adeline,  on 
George  Battiste,  for  niue  dollars," — is  a  sufficient  description,  in  aa  iu- 
dictment,  of  the  instrument  alleged  to  have  been  forged 69 

12.  Larceny  indwelling-house. — Undtr  section  3170  of  the  Code,  unlike  the 
penal  code  of  1841,  (Clay?s  Digest,  425,  i$  55,)  a  person  may  be  con- 
victed of  larceny  in  a  dwelling-house,  although  he  was  in  the  house,  at 
the  time  of  the  theft,  by  the  invitation  of  the  owner. — Point  v.  The 
State 54 

13.  Same;  variance  in  name  of  owner  cf  stolen  goods. — Where  the  indict- 
ment alleg<  d  the  stolen  g6»ds  to  be  the  property  of  Juli  Antoinc,  while 
thi'  proof  showed  that  they  belonged  to  a  FrenchmaD,  whose  name  was 
Juli  Antoim  in  lunch,  aud  wLo  was  "generally  call  d  as  if  his 
name  was  eprlled  Julie  Antoinc," — held,  that  there  was  no  variance  or 
misnomer 54 

;  joinder  of  counts  in  indictment, — In  an 

indictn  i'  t  for  nfitaioing  money  by  false  pretenses,  if  the  false  pretense 

in  different  counts,  to  have  l<e«u  made  to  "C.  B.  6.  and  G. 

1  .  S  ,  who  were  at  the  time  members  of  a  mercantile  firm  of  tie  name 

and  style  of  S.  &  S.,"  to  "  C.    B.  B  "  and  to  "<'.  B.  S.  and  C.  L.  S.," 

there  is  do  misjoinder  of  G  ver  v.  The  .State 41 

An  averment  in  gueh  indictment, 
that,  l>y  means  of  the  fal-e  pret»  use  charged,  the   defendant  obtained  < 
"sixty  five  dollars  in  moil*-.                   lently  definite  and  c  rtain,  with- 
out an  additional  averment  of  the  value  of  the  money 11 

16.  8mm  nt.-jjAa  instrument  of  writing, 

purporting  in  its  commencement  to  be  atflfridcnture  between  two  par- 


744       IN?^ 

CRIMINAL  LAW— continued. 

ties,  reciting  that  the  pirty  of  the  first  part,  for  a  valuable  considera- 
tion, "has  sold,  and  hinds  himself  to  deliver,  to  the  said  party  of  the 
second  part,  all  of  his  present  crop  of  cotton  now  planted,  or  so  much 
of  it  as  will  satisfy  his  indebtedness  to  the  said  party  of  the  second 
part;  that  '•  this  conveyance  is  intended  as  a  security  fur  the  payment"' 
of  a  debt  due  fromAe  party  of  the  first  part  to  the  party  of  the  second 
part,  "  which  payment,  if  duly  made,  will  render  this  conveyance  void, 
a-ul,  if  def  tult  be  made  in  the  payment  of  the  above  sum,  then  the  said 

a  party  of  the  second  pirt,  «ad  his  assigns,  are  hereby  authorized  to  sell 
his  certain  crop  of  cotton,  or  as  much  of  it  as  will  pay  all  of  his  dues  to 
the  said  party  of  the  second  part  ;"  and  signed  and  sealed  by  the  party 
of  the  first  part, — is  sufficiently  described  in  an  indictment  as  a  "deed 
of  trust,-1  and  is  admissible  in  evidence  under  that  description 41 

17.  Adultery;  sufficiency  of  indictment, — An  indictment,  charging  that  a 
man  ami  a  woman  "did  live  in  a  state  of  adultery  or  fornication,'1  but 
not  stating  that  they  thus  lived  with  each  other,  nor  otherwise  showing 
that  they  were  guilty  of  a  joint  offense,  is  demurrable  for  duplicity. — 
Maull  v.  The  S:ate C8 

IS.  Gaming  ;  wliat  is  public  house. — A  lawyer's  office  is  a  public  house, 
within  the  prohibition  of  the  statute  against  gaming.  (Code,  §  3243;) 
and  where  it  consists  of  two  rooms,  front  and  back,  connected  by  a  door, 
in  each  ot  which  profe-sional  business  is  transacted,  the  two  rooms  arc 
equally  within  the  statute. — Smith  v.  The  State 81 

19.  Same ;  conviction  on  testimony  of  accomplice. — Where  a  witness  testifies, 
thtt  he  was  present  while  the  several  defendants  played  a  number  of 
games  with  cards ;  that  at  the  request  of  one  of  the  players,  who  did 
not  understand  the  game  well,  he  sat  behind  him,  and  from  time  to 
time,  during  the  whole  continuance  of  the  games,  instructed  him  how 
to  play  ;  that  he  took  a  card,  on  one  or  two  occasions,  from  the  hand  of 
said  unskillful  player,  and  threw  it  down  on  the  table  for  him,  and,  on 
one  occasion,  during  the  momentary  absence  of  said  player,  played  one 
of  his  cards  for  him  ;  and  that  he  was  also  engaged  in  reading  a  part  of 
the  time, — the  court  may  refuse  to  instruct  the  jury,  that  said  witness 
was  an  accomplice,  (Code,  §  o600,)  and  that  a  conviction  cou'd  not  be 
had  on  his  uncorroborated  testimony 64 

20.  Betting  at  ten-pins;  constituents  of  offense* — Under  the  act  of  1S54,  (Ses- 
sion Acts,  1853-4,  p  30,)  as  amended  by  the  act  of  1858,  (Session  Acts, 
1857-58,  p.  267,)  it  is  betting  at  ten-pin3,  and  not  merely  playing  the 
game,  that  constitutes  the  offense  ;  but  it  is  not  necessary  that  the  game 
should  be  played  at  one  of  the  places  enumerated  in  section  3243  of  the 
Code.— Bass  v.  The^State 87 

21.  Same;  conviction  on  testimony -of  accomplice. — A  person  who  engages  in 
the  game,  and  does  not  participate  in  the  bettiDg,  is  not  an  accomplice, 
within  the  meaning  of  section  3C00  of  the  Code,  which  forbids  a  con- 
viction on  the  uncorroborated  testimony  of  an  accomplice 87 

22.  Gaming  with  slave  ;  xehat  constitutes  offense ;  general  charge  on  evidence. — To 
constitute  the  offense  of  playing  cards  with  a  slave  or  fr<?e  negro,  (Code, 
§  3250.)  a  game  must  be  entered  rpon,  and  some  act  done  towards  its 
completion,  though  it  is  not'ntfcsbary  that  the  game  Bhould  be  played 


INDEX. 745 

CRIMINAL  LAW— continued. 

out;  and  where  the  only  evidence  before  the  jury  is,  that  the  parties 
were  seen  seated  on  opposite  sides  of  a  box,  each  with  four  or  five  cards 
in  his  hands,  while  the  rest  of  the  pack  lay  within  their  reach,  with  the 
top  card  turned  face  upwards,  and  that  they  immediately  bunched  the 
cards,  on  seeing  the  witness,  and  said  that  the  slave  was  telling  the  de- 
fendant's fortune, — a  charge  to  the  jury,  instructing  them  that,  "  if  they 
believed  the  evidence,  they  must  find  the  defendant  guilty,"  is  an  inva- 
sion of  their  province. — Ward  v.  The  State 65 

•23.  Disturbing  religious  worship;  whai  constitutes  offense. — To  constitute  an 
interruption  or  d  Btarbance  of  "  an  assemblage  of  people  met  for  reli- 
gious worship,"  (Code,  §  3257,)  it  is  not  neces-ary  that  the  interrup- 
tion or  disturbs  ce  should  be  made  during  the  progress  of  the  religious 
services  ;  if  mad<  ..Her  the  conclusion  of  the  services  and  the  dismissal 
of  the  congrega  ion,  but  while  a  portion  of  the  people  still  remain  in  (he 
house,  and  before  ;i  reasonable  time  has  elapsed  for  their  dispersion,  the 
offense  is  complete  —  Kinney  v.  The  State 104 

24.  Same. — To  constitute  the  statutory  offense  of  disturbing  religious  wor- 
ship, (Code,  §  8257,)  the  act  must  be  willfully  or  intentionally  done  ;  it  is 
not  sufficient  that  it  was  done  recklessly  or  carelessly. — Har  ison  v.  The 
State f 91 

25.  Same;  evidence  of  character. — Under  an  indictment  for  disturbs  g  reli- 
gious worship,  the  defendant  has  a  right  to  adduce  evidence  of  his  good 
character  ;  but,  until  he  has  done  so,  the  prosecution  cannot  prove  his 
bad  character  as  a  disturber  of  public  worship 61 

26.  Same ;  evidence  of  other  acts  of  disturbance. — Evidence  of  the  facr  that 
similar  acs  of  disturbance  had  been  perpetrated  by  other  persons  in  the 
same  church,  without  objection  or  notice  on-the  part  of  the  members,  is 
irrelevant  anil  inadmissible 61 

27.  Will/id  or  m  Isckief  jftwhat  constitutes  offense— Malice  is  a  neces- 
sary ingredient  of  the  offense  denourced  by  section  3114  of  the  Code  ; 
but,  under  section  3115,  if  the  act  is  either  willful  or  malicious,  the  of- 
fense is  complete. — Johnson  v.  The  State 72 

28.  Stmt ;  when  witMM  may  give  opinion  as  to  value  of  animal. — Under  an  in- 
dictment for  willfully  or  maliciously  shooting  a  mule,  a  witness  who 
was  acquainted  with  the  mule  both  before  and  after  the  infliction  of  the 
injury,  but  who  has  no  skill  in  veterinary  or  medical  science,  mav  state 

his  opinion  as  to  the  extent  of  damage  caused  by  the  wound. . .   .    ....     72 

29.  Keeping  restaurat  without  license;  sufficieticy*of  indictment. — In  an  indiot- 
ment  for  keeping  a  restaurat  without  liceise,  (Code,  §§  387,  399,)  it  is 
not  neceRsary  to  allege  that  the  defendant  teas  engaged  in  the  business  of 
keeping  a  restaurat ;  it  is  sufficient  to  allege  that  he  "did  keep  a  restau- 
rat" without  licensr.— Huttenstein  v.  The  State 64 

HO.  Xegligeiit  treatment  of slave  ;  joinder  of  offense*  in  indictment. — An  indict- 
ment, which  charges  that  the  prisoner,  being  the  owner  of  certain  slaves, 
"  did  fail  to  provide  them  with  a  sufficiency  of  healthy  food  or  necessary 
clothing,  or  to  provide  for  them  properly  in  sickness  or  old  age,"  (Code, 
§§  3297-98,)  is  not  objectionable  for  duplicity,  although  a  conviction 
might  be  had  on  proof  of  negligent  treatment  in  any  one  of  the  speci- 
fied particulars  ;  nor  does  the  joinder  of  the  names  of  several  slaves,  in 

49 


index;  

CRIM]  '.V— CONTINUED. 

the  ■  render  it  obnoxious  to  that  objection,  although  a  con- 

viction might  be  had  on  proof  of  the  negligent  treatment  of  any  one  of 

them.— Ohoek  v.  The  State 107 

-In  such  an  indi  si  ves 

c-  a-c  to  the  grand  jurors  unknown,  may  be  ibed, 

if  by  I  ■  ir  names  cannot  be  ascertained  ;  but, 

• :-.  on  the  trial  thaf,  at  the  time  the  indictment  was   found, 

■  in  fact  known,  or  could  have  been  asc rained  by  due 

dant  will  be  entitled  to  an  acq  littal  h-  to  them;  yet 

proof  name-  were  known  at  the  time  of  the 

trial,  without  m  not  entitle  him  to  an  acquittal 1<;7 

32.  y  -Under  such  an  indictment,  charging  the 

ncglij  "        .  if  it  should  appear  on  the  trial 

that  tl  .;  Bl&yee  were  distinct,  it  would  be  the 

duty  of  the  court  to  compel  an  election  by  the  prosecution  ;  yet.  if  all 
the  slaves  are  on  the  same  plantation,  and  the  defendant's  conduct^  to- 
war  aggregate  is  relied  on  for  a  conviction,  there  is 

no  ground  for  such  compulsory  election 107 

:?3.  <•  ■  as  expert. — A  person  who  has  served  in  the 

■  on  plantations  for  sixteen  months.  %;  competent 
•i,o  give    i>«-  rt,  in  reference  to  the  amount  oi 

whir  r  a  plantation  slave 107 

34.  iS  ■■/nig  quantity  of  meat  furnished  to  de- 

fi>  . — The  indictment  having  been  found  in  May,  1SG0,  and 

the  prosecution  having  proved  that,  in  the  year  1S59,  all  the  meat  on 
the  d<.  i  ndant's  plantation  was  consumed  by  midsummer,  and  that  meat 
was  after  wards  sup  plied  to  the  plantation  from  his  residence,— it  ia  com- 
petent for  ;  Mit  to  prove  that,  in  December,  1^58,  (outside  of 
the  time  covered  by  the  indictment.)  a  specified,  number  of  bogs  wi  re 
killed  on  the  plantation,  the  meat  of  which  was  kept  theic  for  the  use 

of  the  slaves 1 07 

16.    When  indictment  /;'«  far  f>rcnch  of  duly  I  Us  suJJJ- 

cienrii — An  indictment  lies  against  the  lessee  of  the  city  water-works  of 
Mobile,  for  a  breach  of  the  public  duty  imposed  on  him  by  bis  contract 
wit  irate  authorities,  in  failing  to  furnish  the  city  with  a  sup- 

ply but,  Bince  his  contract  only  hinds  him  to  supply  water  to 

the  city  from  Three-mile  creek,  and  contains  no  stipulation  as  to  the 
quality  of  the  water  to  be  supplied,  an  indictment  which  simply  charges, 
in  effect,  that  the  water  supplied  by  him  was  not  good  and  wholesome, 
sli i>  "f  duty  resulting   from  the  contract. — St  in  v.  The 

State .' *f 

16.  Nuisance;  menl-lks,  and  its t  -Selling  and  furnish- 

ing unwholesome  and  poisonous  water  to  an  entire  community,  is  a  nui- 
for  which  an  indictment  will  lie ;   but,  if  the  indictment  docs  not 
ill  defendant,  his  agents  or  Bervants,  poisoned  the  water,  W 

imputed  to  it  its  unwholesome  quality,  it  must  aver  his  knowledge  of 

its  unwholesome  or  poisonous  quality 29 

:t7.  Same:  —Under  an  indictment  for  a  nuisance,  in  selling  and 

furniekipg  unwholesome  water  to  an  entire  community,  the  prosecution 


___^ INDEX. T4T 

CRIMINAL  LAW— continued. 

may  adduce  evidence,  showi  Efecta  "''  '■  '  watet  on 

particular  persons,  members  of  the  community,  not  named  in  the  in-, 

dictmont 

38.  Same;  admissibility  of sla  Ions.— The  d 

complaining  of  sickness,  and  detailing  kis  symptoms,  ai 

idence  on  tl 

case,  though  made  to  a  person  who  is  not  ?.  •  -'' 

3?.  Statutory  nuisdnce ;  {ra[  ;on 

undei  ■'  nuisance 

Acts   1857-8,  p.  285,)  alt! 

reputnion  it,  or  tha:  of  his  »r 

traffic^  bod,  it  is  not  o 

should  fi  :  to  be  proved  ;  nor  i  to 

permissioo  or  con  >uld 

about  his  i  ,  iot  is  it  nee 

retailer. — &  

40.  8  ent. — An    u 

it  the  def<  spt,  or  wa 

keeping   of,   a   public    I 

person  habitually!  about, 

iu 

form  authorized  by  the  third  section  of  the  ao1 

• ' '' 

41.  .  us  liquors;  removal  of  .'<'•' 

-The  mere  removal  of  a  He 
count] . 

it  under 

The  State .- • ' 

12.    I. 
prohibiti  I  y  of  Liquor  to  "Bt  >de, 

a  to  fermented  liquors  irit- 

cle  v.  The  State 

43.  Same  .  f  witness,  admissibility  lve~ 

qucn;  I;  and  who  ca  their 

■■..•tout 

::0t  a 

r   *8 

com- 

■ 
e  v.  The  State 

of  indictment* — L 

that 

cacl 

46.  *  in  indict,.. 

natur  i  giug  to  the  jamu  fai 

.  hcuncit. 
:e  the  same. — Otwley  v.  Tl 


748 ^5L?: 

CRIMLNAL  LAW— coxTiN&ED. 

Also,  Oliver  v.  The  State. 41 

Cheek  v.  The  State 107 

47.  Sufficiency  of  verdict. — A  goueral  verdict  of  guilty,  under  an  indict- 
ment charg  rig  two  offenses,  properly  joined  in  different  counts,  is  suffi- 
cient to  authorize  a  judgment  and  sentence  for  the  punishment  pre- 
scribed for  one  of  the  offenses. — Cawley  v.  The  State &'.> 

48.  Regularity  of  proceedings  presumed,  against  irregularities  of  minute-entries 
in  transcript. — The  appellate  court  will  not  presume  that  the  prisoner  was 
tried  and  sentenced  without  an  ind  etinent,  simply  because  the  several 
minute-ent  ics,  showing  the  trial,  conviction  and  sentence,  are  copied 
iltto  the  transcript  before  the  indictmont   5v 

40.  Seriice  of  copy  of  indictment  on  prisoner. — If  a  copy  of  the  indictment, 
as  originally  fouud  by  the  grand  jury,  is  served  upou  the  prisoner  while 
in  confinement,  (Code,  §  3576,)  the  validity  of  the  service  is  not  affected 
by  the  (act  that,  a  nolle- prosequi  had  been  entered  as  to  one  of  the  counts. 
Scott  v.  The  State S8 

60.  Change  of  venue;  sufficiency  of  clerk's  certificate  to  transcript. — On  change 
of  venue  in  a  criminal  case,  if  the  clerk's  certificate,  appended  to  the 
transcript,  states  that  it  ''contains  a  true  and  complete  transcript  of  the 
caption  of  the  grand  jury,  and  a  copy  of  the  indictment,  with  the  en- 
dorsements thereon,  together  with  the  recognizances  of  the  witnesses, 
and  all  the  orders  and  judgments  had  in  the  case,  all  of  which  is  as  full 
and  complete  as  the  same  appea-3  of  record," — this  is  a  substantial 
compliance  with  the  requirements  of  the  statute,  (Code,  §  3613.) 23 

61.  Same;  sufficiency  of  certified  transcript ;  organization  of  grand  jury. — 
Where  the  regular  term  of  the  circuit  court  commenced  on  the 
second  Monday  after  the  fourth  Monday  in  October,  which  was  the  eighth 
day  of  November  ;  and  the  indictment,  as  copied  into  the  certified  trau- 
ecript  on  change  of  venue,  purported  to  have  been  returned  into  court 
oa  the  ninth  day  of  November  ;  while  the  transcript  stated;  in  its  caption, 
that  the  grand  jury  was  organized  at  a  term  of  the  court  begun  and 
held  on  the  second  Monday  after  the  fourth  Monday  in  November,  which 
was  the  sixh  day  of  December, — held,  that  the  transcript  did  not  show- 
that  the  grand  jury  was  organized  at  the  regular  term  of  the  court ; 
but,  if  a;, wrong  dite  was  inserted  in  the  transcript  by  a  clerical  mis- 
prision, (there  being  a  reversal  of  the  judgment  on  other  grounds,)  the  ' 
mistake  nay  be  corrected  before  another  trial. — Aaron  y.  The  State. .     12 

52.  When  objection  to  grand  jury  may  be  made. — The  objection  cannot  be 
raised  for  the  first  time  in  the  appellate  court,  that  the  record  fails  to 
show  that  the  grand  jurors  were  regularly  selected,  and  euinnroued. — 
Bass  v.  The  State 87 

53.  Competency  of  juror. — A  mere  occupant  and  tenant,  under  a  yearly 
letting,  of  a  room  used  by  him  as  a  sleeping  apartment,  is  not  a.  free- 
holder, within  the  meamng  of  the  statute  (Code,  §  3583)  specifying  the 
grounds  of  challenge  to  jurors  in  criminal  cases. — Aaron  v.  The  State. .     12 

64.  Challenge  of  jurors.— la  all  trials  for  capitaljor  penitentiary  offenses 
(Code,  §  3585,)  the  State  may,  at  its  election,  challenge  for  cause  a 
juror  who  has  a  fixed  opinion  against  capital  or  penitentiary  punish- 
ments ;  yet  the  statute  does  not  impose  on  the  court  the  duty,  ex  mcro 


^ INDEX* -    749 

CRIMINAL  LAW— continued. 

molu,  of  setting  aside  a  juror  for  this  cause ;  nor  can  the  prisoner  com- 
plain if  the  State  waives  or  forbears  to  exercise  ita  right  of  challenge. 
Murphy  v.  The  State 48 

65.  Oath  of  pc'it  jury. — If  the  jury,  in  a  criminal  case,  are  sworn  "well 
and  truly  to  try  the  issue  joined,"  this  is  a  substantial  compliance  with 
the  requisition  of  the  statute,  (Code,  j?  3478,)  and  is  sufficient. — McGuire 

v.  The  State G9 

66.  Jurisdiction  of  State  courts  to  discharge  person  in  custody  for  violation  of 
criminal  laics  of  United  States. — The  courts  of  this  State  have  now  (July 
9,  1861,)  no  jurisdiction  to  discharge  from  custody  a  person  who  was  ar- 
rested prior  to  the  passage  of  the  ordinance  of  secession,  charged  with 
a  violation  of  the  criminal  laws  of  the  United  States  within  the  limits 
of  the  State  of  Virginia;  the  question  of  his  right  to  be  discharged,  or 
his  transfer  to  the  proper  court  iu  Virginia  for  trial,  appertaining  to  the 
jurisdiction  of  the  district  court  of  the  Confederate  States ; — Ex  parte 
Kelly 01 

57.  Jurisdiction  of  probate  judge  to  revise  proceedings  of  magistrate  under  ]>eace 
warrant. — A  probate  judge  has  no  jurisdiction,  on  habeas  corpus  or  other- 
wise, to  revise  an  order  made  by  a  justice  of  the  peace,  requiring  a 
party  to  give  security  to  keep  the  peace,  and  directing  his  imprisonment 
until  such  e  ecurity  is  given  ;  the  only  mede  of  revising  the  action  of  the 
justice,  is  by  an  appeal  to  the  circuit  court  under  section  S361  of  the 
Code. — Ex  parte  Cobui  n 117 

DAMAGES. 

1.  For  breach  of  contract. — In  an  actios  for  a  breach  of  contract, — by  which 
plaintiff  agreed  to  serve  defendant,  in  the  capacity  of  an  overseer,  for 
the  term  of  one  year,  but  was  discharged,  without  fault  on  his  part,  be- 
fore the  expiration  of  the  year, — if  the  suit  is  commenced  before  the 
expiration  of  the  year,  the  plaintiff  can  only  recover  unliquidated  dam- 
ages for  the  breach  of  contract ;  and  it  cannot  be  assumed,  as  a  matter 
of  law,  that  the  stipulated  wages  for  the  entire  year  would  be  the  mea- 
sure of  damages. — Wright  v.  Falkner 231 

2.  Fbr  breach  of  warranty  of  soundness  of  daw.— In  ascertaining  the  pur- 
chaser's damages,  resulting  from  a  breach  of  warranty  of  »he  sound- 
ness of  a  slave,  proof  of  tbe  value  of  the  slave  a  lew  months  after  the 
sale  is  admissible,  as  shedding  light  on  the  question  of  value  at  the  time 

of  the  sile.— Stone  &  Best  v.  Watson 288 

8.  Same;  proof  of  medical  bill,  as  part  of  damages. — It  is  permissible  for 
the  purchaser,  in  an  Action  to  recover  damages  on'account  of  the  un- 
soundness of  a  f-lave,  to  prove  at  whose  request  a  physician  whs  called 
in  to  the  slave,  and  as  whose  property  the  physician  attended  her  ;  but 
the  physician's  accou i  t  for  services  rendered  to  the  slave,  which  was 
paid  by  the  purchaser,  is  not  admissible  evidence  for  him,  until  it  has 
been  proved  that  the  services  were  rendered  as  charged,  for  the  treat- 
ment of  a  disease  existing  at  the  time  of  the  sale,  and  that  .the  charges 

were  correct ,..  238 

-4,  For  ovtrjlrxing  land. — In  as  action  to  recover  damages  for  overflowing 


750    * £NDEX.  

DAMAGES—  continued. 

lands, a  recovery  cannot  be  had  for  injuries  accruing  after  the  com- 
mencement of  the  suit;  but  evidence  of  such  injuries  is  admissible, 
with  a  view  ef  affording  information  to  the  jury  of  the  consequences 
of  the  diversion  under  similar  circumstances  before  suit  brought. — Pol- 
ly v.  McOall 246 

5.  Inaction  on  attachment  bond  — In  an  action  on  an  •;,  if 
the  attachment  was  not  vexatious  as  against  the  def  ndant  in  the  pro- 
cess, the  fact  that  the  attaching  creditor  was  actuated  by  ma'ice  to- 
wards a  third  person,  who,  though  a  joint  obligor  ftith  the  defendant 
in  attachment,  was  not  a  party  to  the  pro  Is  no  ground  for 
the  recovery  o!  vindictive  damages. — Wood  v.  Barker   , SI  1 

6.  In  — On  the  execution  of  a  writ  of 
inquiry,  after  judg  nent  by  default,  in  trespass  for  takinj  prop- 
erty, the  fact  that  the  property  was,  at  and  before  the  l«vy  of  the  exe- 
cution, which  constituted  the  trespass  complained  of,  in  the  possession  of 
the  defendant  in  execution,  is  competent  evidence  for  the  defendant,  in 
mitigation  of  damages,  as  tending  to  show  that  he  acted  in  go  d  faith 

in  having  the  levy  made. — Sterrett's  Executor  v.  Kasti  r 404 

I.  Sum. — In  such  case,  the  judgment  by  defauH  estops  the  defendant 
from  Bhowing,  even  in  mitigation  "of  damages,  that  the  plaintiff  had  not 
such  a  title  as  would  authorize  a  recovery  ;  yet  he  nviy  s'  ow,  in  miti- 
gation, that  the  plaintiff  was  not  the  owner  of  the  property,  a<5  that 
fact  is  not  necessarily  inconsistent  with  the  plaintiff's  right  to  recover..  404 

8.  In  trespai  ■■ . — In  trespass  quare elan  ihejury, 
asserting  that  they  can  not  give  vindictive  darniges,  "unless  they  be- 
lieve from  the  evidence,  that  the  defendants  maliciously  entered  upon 
the  plaintiff's  finds,  in  a  rude,  aggravating,  or  insulting  raauneiy'  is  er- 
roneous, because  it  improperly  restricts  the  standard  of  liability. — De- 
vaughn  v.  Heath 523 

9.  In  action  for  breach  of  promise  to  marry  ;  ad 

vation  of  damages. — If  evidence  of  seduction  can  be  received,  in  any 
case,  to  aggravate  the  damages  in  an  action  for  a  breach  of  promise  to 
marry,  it  is  only  whore  the  seduction  follows  the  p-oinis,:,  an  d  is  effected 
by  means  of  it  :  seduction  prior  to  the  promise  is  not  ad  a  issible  evi- 
dence.— Espy  v.  Jones 454 

10.  Same;  ,  tuff's  leant  of  chastity  in  mitigation \i)f  dama- 
ges.— Acts  of  fornication,  committed  by  the  plaintiff  prior  to  the  defend- 
ant's promise  to  marry  her,  and  in  which  the  defendant  himself  partici- 
pated, are  not  admissible  evidence  for  him  in  mitigation  of  the  dam- 
ages   454 

II.  On.  affirmed  judgment*— On   the  affirmance  of  a  judgment  which  hi 
been  superseded,  (Code,  §  3032,)' the  ten  per  cent,   damages  should  be 
computed  oh  the  amount  of  the  original  judgment,  and  not  on  that  sum 
with   interest-'  thereon  up  to  the  time  of  the  affirmance. — Lawrence  v.   I 
Jones 617 

»  V 

DEEDS.  ,«' 

1.  Consideration. — Love  and  affection  for  a  grandson  is  not  a  valuable  con- 
sideration for  a  deed. — B:rum  v.  King's  Adm'r '34 


I 


^-' 


INDEX. 751 

DEEDS— CONTINUED. 

% 

2.  Desa  'ted  in  indictment —  An  instrument  of  writing,  purporting 

in  its  commencement  to  bj  an  indenture  between  two  parties,  reciting 
that  the  party  of  the  first  part,  for  a  valuable  consideration,  "  has  sold, 
ana  bin  If  to  deliver,  to  the  said  party  of  the  second  part,  all  of 

his  present  crop  of  cotton  now  planted,  or  so  much  of  i  atisry 

his  ind  to  the  said  party  of  the  second  part;"  that  "  this  eon- 

veyan  le  1  as  a  security  for  the  payment"  of  a  debt  due  from 

the  p  .  first  part  to  the  party  of  the  second  part,  "  which  pay- 

ment, if  duly  ma  le,  w  11  render  this  ■  be  ,  • 

made  in  th  above  sum,  then 

part,  and  '  are  hereby  authorized  tin  crop  of 

cotton,  pr  b  '■<  as  will  pay  all  of  hh 

the  Bee  led  by  the  party 

[bed  in  an  indictment  as  a  "deed  of  tru 
admi  der  that  description.— Oliver  v.  The  State. . .     41 

3L  Delivery  or  d  .—At  common   law,  in  the  ab- 

sence of  an  •  »,f  the  property  itself,  a  gilt   could  on 

conM  r  other  instrument  under  seal;  not  because     ^7 

the  delivery  oi  dicfcl  delivei  proper-   * 

ty,  but    .  pie  of  estoppel.  —Connor  v.  Trav  •  .<  . 

4.  A                                                                -Par  >1  evidence  is  admissible, 
to  show  thai  a                    nd  tf  as  in  fact  executed  on  a  different  day    «'     J[j 
from  thai  stated  in  it. — Miller  v.  II  unptdn 3jL7 

See,  also.  Frauds,- Statute  of.  +. 

r 

DEPOSITION  jf 

a 

1.  0  '.-. — An  objection  to' a  deposition,  on  the  ground. that 
no  no  en  of  the  time  and  place  :it  which  it  would  be  taken, 
canm'  tide  when  the  deposition  is  offered^  a  evi- 
dence on  I  McGill  v.  Monette , 285 

2.  G  .'..ion  to  "each  sentence  of  each  de- 
position," is  nothing  more' than  a  general  objection  to  each  deposition  : 
and  i'  ".stion  contains  soi  rideoce,  sueh  objection  may 
be  over:  i,  —Taylor  v.  Strickland 571 

3.  Ob  — When  a  deposition^  laken  with- 
out filing  o  objection  to  a  qriestwo,  on  the  ground  that 
it  i=t  le  it  the  examination  of  the  witness,  andjeomes 
too  !  tor  the  (ir~t  time  at  the  trial.—  Memphis  tjjb  >rles- 
ton  I  Bibb v.- *.  .  .Vr. . . .   630 

4.  Noisup  R        -T^lr'lficV'that 

ami  a  led,  i  taken,  fiy  Btrik- 

•:'  tin'.  pl;i  ntift's,  who  wu  d<  ad. "a t/tho' com- 
mencement of  t  Ot  a  sufficient  ground  for  to  tog  of 

Such  .irh r t4% 140 

•'■  I  £Sc<nl>le,  that 

the  act 'to  compel  the  pergonal  attendant1*-'  of  witnesses  in  civil  cases." 

•7-8,  p.  34,)  docs  not  apply  to  aw  je  confiaod 

in  jail  mider  a  judicial  sentence;  but,  if  the  proper  affidavit  has  been 


752  INDEX. 

DEPOSITION— continued. 

made,  and  the  attendance  of  the  witness  can*be  procured,  the  deposi- 
tion ought  to  be  suppressed. —Webb  v.  Kelly 349 

6.  When  deposition  of  party  may  be  taken. — When  a  party  is  competent  to 
testify  in  his  own  favor,  his  deposition  may  be  taken,  as  in  case  of  other 
witnesses. — Douglass  v.  M.  k  W.  P.  Railroad  Co 6G6 

DETINUE. 

1.  Release  of  surely  on  detinue  bond,  and  examination  as  witness. — The  surety 
on  a  detinue  bond  may  be  released,  and  examined  as  a  witness  for  his 
principal,  on  the  execution  by  the  latter  of  a  new  bond,  with  other  good 
and  sufficient  sureties  ;  but  it  is  not  permissible  to  er.ise  the  surety's 
name  from  the  bond,  against  the  objection  of  the  obligee,  and  substitute 
the  name  of  another  surety  in  his  stead. — Webb  v.  Kelly 349 

DISCONTINUANCE. 

1.  Of  summary  proceeding. — A  summary  proceeding  by  notice  and  motion 
-..will  be  discontinued,  unless  some  action  is  had  on  the  notice  at  the  re- 
turn term,  although  the  "stay-law"  prohibits  the  rendition  of  judgment 
at  that,term  ;  vet  the  plaintiff  may  keep  alive  his  notice,  by  having  it 
docketed,  according  to  the  rule  of  practice  adopted  at  this  term,  or  by 
''sorae'acfion  of  the  court  continuingits  existence. — Ex  parte  N.  E.  &  S. 
W.  Railroad  Co 608 

•DOWER. 

1.  JExtent  of  widow's  quarantine. — A  plantation,  about  five  miles  distant 
from  the  town  in  which  the  husband  resided  at  the  time  of  his  death, 
from  he  drew  his  supplies  and  derived  his  entire  income,  and  the  super- 
intendence of  which  constituted  his  only  bus;ness.  is  not  so  connected 
with  his  residence,  (Code,  §  1359,)  as  to  entitle  the  widow  to  the  posses- 
sion or  rents  thereof,  until  her  dower  is  assigned.  (A.  J.  Walkkr,  C.  J., 
dissenting.) — McAllister  v.  McAllister 366 

2.  Mesne  profits,  and  measure  thereof. — After  dower  has  been  allotted  to  the 
widow  by  the  probate  court,  she  may  come  into  equity  to  recover  dam- 
ages for  its  detention ;  and  the  measure  of  her  damages,  where  the  hus- 
band left  no  descendants,  would  be  one-half  of  the  rent,  from  the  death 

m 

of  her  husband,  until  the  assignment  of  dower 366 

3.  When  probate  court  may  assign  dower. — In  proceedings  before  the  probate 
court  for  an  assignment  of  dower,  (Code,§§  1860-72,)  it  is  no  defense  to 
the  application,  that  the  lands  in  which  dower  is  sought,  and  of  which  the 
decedent  died'seized  and  possessed,  are  in  the  possession  of  a  third  per- 
son, who  "claims  an  undivided  half  inteiest  in  them,  undera  contract  be- 
tween hinVaud  *the  decedent,  by  which  it  was  agreed,  that  the  latter 
should  enter  the  lauds,  under  the  graduation  act  of  1854,  in  his  own 
name,  but  for  their  joint  use  and  benefit,  and  with  money  furnished  by 
the  former  :  such. contract  being  illegal  and  void,  the  person  in  posses- 
sion is  not  an  alienee  of  the  decedent,  and  the  fact  that  he  has  made  val- 
uable improvements  on  the  land  does  not  take  away  the  jurisdiction  of  4 
tke  probate  court. — Smith  v.  Johnson 662 


INDEX. 753 

EASEMENT: 
See  Advkrse  Possession,  4,  5. 

ELECTION. 
See  Cbancbby,  14. 
Criminal  Law,  32. 

ERROR  AND  APPEAL. 

I.    Wiikn  AvrEAL  Lies. 

1.  From  probate  decree. — A  decree  of  the  probate  court,  which  purports  to 
have,  been  rendered  on  final  settlement  of  the  account?  and  vouchers  of 
the  administrator  of  an  inso'vent  estate  ;  which  corrects  certain  sup- 
posed errors  and  mistakes  in  a  former  settlement,  thereby  showing  a 
larger  balance  in  the  administrator's  hands  for  distribution  among  the 
creditors,  and  declares  the  former  settlement  to  be  partial  only  ;  and 
by  which  "  it  is  considered  and  decreed,"  that  the  claims  allow 

the  former  settlement,  wfJich  were  then  declared  entitled  to  a  dividend 
Of  eighty  per  oent,  "  be  paid  in  full,  and  that  whatever  sums  shall  re- 
main, after  the  satisfaction  of  said  allowed  chums 

among  the  four  minor  heirs  of"  the  decedent, — ha?  not  the  requisites 
of  a  tinal  decree,  and  will  not  support  an  appeal. — Watt's  Adin'r  v. 
Watt's  Distributees 4.67 

2.  From  judgment  of  f      tuit,  —A  nonsuit  may  be  taken,  with  a  bill  of  ex- 

ms,  (Code,  ?  2357, )i  in  conscqucuce  of  the  suppression  of  the 
pi. Stiff's  deposition,  on  motion,  before  the  trial  is  entered  upon. — 
Douglass  v.  M.  &  W".  P.  Railroad  Co 556 

II.     Bond,  and  Security  kor  Costs. 

— da  appeal  from  a  judgnunt  of  the  cir:u  t  court,  dis- 
missing a  petition  for  rehearing  after  goal  judgment.  (Code,  §§  2407- 
15.)  th ■:•  surety  on  i  '  u  liond,  bciDg  a  party  defendant  to  the 
Jed  from,  cannot  become  a  surety  for  the  costs  of  the 
appeal ;  and  if  there  is  no  other  surety  for  the  costs,  (Code,  §  3041,) 
the  appeal  w  ill  be  dismissed  on  motion. — D<;v's  v.  MeCampbell 

III.    Practice.' 

4.    What  u  rentable. — In  civil  causes,  the  appellate  court  will  not  noi" 
any  l  -  ■:'  error  which  is  not  insisted  on  in  the  argument  of  the 

appellant's  counsel.- -McGill  v.  Monette 

.•     Wi  in  garnishment. — The  allowance  of  a  set- 

off claimed  by  the  garnishee,  agaiust  the  claims  admitted  by  him  I 
due  (  .  !ant,  or  to  his  transferrer,  is  not  a  matter  of  whic 

plaintiff  can  complain  on  error,  when   the  record  shows  that  he  cor- 

thc  claims,  and  that  the  jury  fou: 
e  in  favor  of  the 
6.    b     i  or  ftdmh. 

tr.tT  canuot  complain,  on  error,  of  the  allowance  of  compensation  to 
tardian  ad 

sounta  an.i                                                              ndiced  — Ai 
son's  Executor  v.  Anderson's  Heirs 

50 


754 IND&g.        _______ 

ERROR  AND  APPEAL— coxtin. 

7.  Error  without  injury  in  admission  and  subsequent  withdrawal  of  evidence. 

The  erroneous  admission  of  evidence,  which  is  afterwards  withdrawn 
from  thejir.7,  and  whLh  they  are  expressly  instructed  by  the  court  not 
to  regard  lor  any  purpose,  is,  at  most,  cr.or  without  injury. — Wiliiain* 

v.  Ivey 220 

8.  Szmc,  in  admission  of  redundant  evidence. — Where  the  probate  of  a  will 
18  shown  by  a  transcript  from  the  records  of  the  proper  court,  duly  cer- 
tified, other  parts  of  the  transcript,  containing  entries  relating  to  (ho 
testator's  estate,  which  can  have  1.0  cher  effect  than  to  strengthen  the 
conclusion  that  the  will  was  admitted  to  probate,  are  merely  redundaut 
evidence  ;  and  their  admission  as  evidence  is,  at  most,  error  without  in- 
jury.— Jeiuison  v.  Smith 140 

9.  Softie,  in  sustaining  demufrer  to  special ylea. — The  sustaining  of  a  demur- 
rer to  a  special  plea,  if  erroneous,  is  not  available  to  the  defendant,  when 
the  iefrord  shows  that  he  had  the  full  benefit  of  the  same  defense  under 
the  general  issue. — Kannady  v.  Lambert 814 

10  Safne,  in  refusal  of  charge  ashed. — Since  the  statute  (Code,  §  2S55)  im- 
peratively reqwircs,  that  a  charge  to  the  jury,  if  correct  and  not  ab- 
stract, must,  be  given  in  the  language  in  which  it  is  asked,  the  doetiine 
of  error  without  injury  cannot  be  applied  to  the  refusal  of  sachchwrge, 
although  the  legal  proposition  embraced  in  it  was  substantially  enunci- 
ated in  another  charge  given  by  tha  court. — Polly  v.  McCall 246 

11.  Presumption  in  favor  of  ruling  of  primary  court. — In  a  probate  cai 
where  the  correctness  of  the  ruling  of  the  primary  court  depends  on 
the  proof,  and  the  record  does  not  purport  tj  set  out  all  the  -evidence 
on  wh  eh  the  probate  judge  acted,  the  appellate  court  will  presume 
that  his  decision  was  justified  by  the  evidence. — Ward  v.  Cameron's 
Adm'rs 622 

12.  S'.tme. — When  a  charge  is  requested,  which,  on  the  facts  hypothetical- 
ly  stated,  asserts  a  correct  legal  proposition ;  but  those  facts  might  be 
met  and  avoided  by  proof  of  other  facts,  which  would  render  the  charge 
erroneous, — ;f  the  bill  of  exceptions  does  not  purport  to  set  out  all  the 
evidence,  the  appellate  court  will  presume,  in  favor  of  the  ruling  of  the 
primary  court,  that  6uch  additional  facts  were  proved. — McLemore  v. 
Nuckolls 59 1 

13.  Same. — So,  the  appellate  will  presume  that'a  charge  given  was  not 
abstract,  when  the  bill  of  exceptions  does  not  purport  to  set  out  all  the 
evidence 591 

7,  4.  Same. — When  no  pleas  appear  in  the  record,  the  appellate  court  will 
presume  that  proper  pleas  were  filed  to  let  in  the  evidence  which  the 
primary  court  admitted. — Wynne  x:  Whisenant 282 

15.  Same. — In  a  criminal  case,  the  appellate  court  will  not  presume  that 
the  prisoner  was  tried  and  sentenced  without  an  indictment,  simply  be- 
cause the  several  minute-entries,  showing  the  trial,  conviction  and  sen- 
tence, are  copied  into  the  transcript  before  the  indictment. — Cawley  v. 
The  State .• 59 

16.  Prenumjption  of  injury  from  error. — If  evidence  is  erroneously  excluded 
by  the  primary  court,  on  a  single  specified  ground,  the  appellate  court 
will  presume  injury  from  the  error,  although  it   appears   that  the  evi- 


INDEX. 75S 

ERROR  AND  APPEAL— r ontinied. 
dcnce  was, prima  facie,  inadmissible  en   another  ground,  ttliieh,  if  the 
objection  had  there  been  raised,  might  have  been  obviated  by  the  intn  - 
duction  of  other  cv.dence. — Moseley's  Adm'r  v.  Mastin IT  1 

17.  Sctmz. — Under  the  Code,  (§  2255,)  if  plaintiff  amends  bis   complaint, 
after  the  couit  has  sustained  a  demurr  r  to  the  original,  and  pro 

to  trial  on  the  amended  complaint,  he  does  not  thereby  waive  his  right 
to  a=  sign  as  error  the  judgment  on  the  demurr  1 

shows  that,  in.  ci  >  of  the  amendment,  he  Loo  injury  I y 
that  judgment.  (Overruling  34  Ala.  652,  and  lim- 
iting '  lommenoi  d  b  fore  the 
Code.)— Williams  v.  Ivey » 280 

18.  D  in  the  affirmance  of  a  judgment  which 
been  superseded,  (Code,  §  3032,)  the  t  n  per  cent,  damages  should  be 
computed  on  the  amount  of  the  original  judgment,  and  not  on  that  sum 
with  the  interest  thereon  up  bo  the   time  of  t'ie  affirmance. — Lawrence 

v.  Jones t G17 

ESTATES  OF  DECEDE3N 

1.  Ad  .  or  property,  given  by  a  parent  to  a  child,  will 

Vic  pr  SUtned  to  have  been  inteuded  as  an  advancement,  unless  such  pr 
sumption  is  repelled  by  the  nature  of  the  gift,  or  by  ether  evidence 
showing  that  it  was  intended  as  an  absolute  gift.  To  show  that  an  ac- 
ute gift,  and  not  a  mere  advancement,  was  intended,  the  eontempoia- 
neou-  declarations  of  the  pan-nt  are  admissible  evidence  for  the  child  ; 
"and  when  the  q  i  distributees,  there  is  much 

«on.  as  well  as  authority,  in  support  of  the  proposition,"  that  the  subs 
quenl  declara  I      parent,  expressive  of  his  intention  in  parting 

With  the  property,  are  admissible  evidence  for  the  same  purpose.  But 
in  this  case,  conceding  the  admissibility  of  such  subseqiii  nt  declarations, 
and  ectfon  with  the  other  facts  proved,  they  arc 

not  suftl  ient  to  show  that  i  court  erred  in  deciding  thai 

prop'  rty  ■<]  as  an  advancement. — Autrcyv,  Autrey's  Adra'i 

y.— In  :ases  of  paHlal  Intestacy,  ad  ance- 
not  required  to  be  brought  into  hotchpot,  (Cod. 
utitle  the  parties  to  share  in  the  property  undisposed  of  by 

the  will.—  Execul  r  V.  Speer  and  Wife 400 

:t.    Vi  . —  A    plantation,   about  live    miles    distant    from 

the  town  in  which  the  husband  resided  at  the  time  of  his  death,  from 
which  h«*  drew  his  supplies  and  derived  his  entire  income,  and  the  superi- 
or which  constituted  his  only  bus' ne68,  i.-?  not  so  con?  ■ 
entitle  the  widow  to  tl  i 
:.  until  her  dower  is  assigned.    (A.  J.  Waikxr,  C.  J., 

3Cti 

nst  the  estate  of  a  deci  a»ed  j»  rs< 
bai .                                                                       ntative  wit 
months  after  the   grant  ol                            en'arvor  of  administration, 
(C"                                                                                   representative 
to  givo  notice  to  creditors,  as  rtquin                 tatute. — Bosk  of  Mont- 
gomery v.  Plannett's  Adm'r r  ! 


756  INDEX. 

ESTATES  OF  DECEDENTS— continued. 

5.  Validity  of  order  of  sale  by  probate  court,  for  division. — An  order  of  the 
probate  court,  for  the  sale  of  a  decedent's  lands  for  the  purpose  of  divi- 
sion among  the  heirs,  obtained  by  an  administrator  de  bonis  non  legally 
appointed,  is  not  reudcred  void  by  the  prior  descent  of  the  land  to-the 
heirs,  the  payment  of  all  the  debts,  and  the  distribution  of  the  personalty 
by  the  administrator  in  chief:  although  those  facts  might  constitute 
good  grounds  of  objection,  in  the  probate  court,  to  the  granting  of  the 
order. — Watson  v.  Collins'  Adm'r 515 

6.  Distribution  of  estate  by  content. — Where  the  slaves  belonging  to  a  d'  ce- 
dent's estate  remain  undivided,  after  the  payment  of  his  debts  and  the 
final  settlement  of  the  administration  on  his  estate,  and  are  afterwards 
divided  by  consent  among  the  several  distributees,  who  execute  recip- 
rocal conveyances  to  each  other  for  their  respective  shares  ; — the  hus- 
band of  oneof  the  female  distributees  thereby  acquires  a  complete  equi- 
table titie  to  the  s'aves  allotted  to  him  and  his  wife;  and,  on  his  death, 
while  thus  in  possession  of  them,  his  personal  representative  is  charge- 
able -with  th(  m  as  belonging  to  his  estate. — Anderson's  Executor  v.  An- 
derson's Heirs ,. . .   612 

See,  also,  Executors  and  AdmikistbaIOBS.  -»•   ' 

PEL 

1.  By  bond. — The  sureties  on  a  bond,  which  recites  that  the  prin- 
cipal obligor  '-has  been  duly  elected  intendaut  of  the  town  of  C,  and 
is  thereby  made  ex  officio  a  justice  of  the  peace,"  are  estopped,  when 
sued  on  the  bond  for  the  default  of  their  principal,  from  alleging  that 
he  was  not  a  justice  of  the  peace  ;  it  appearing  that  he  was  af  least  a 
justice  de  facto,  and  received  much  business  as  a  justice  on  the  faith  and 
credit  of  the  bond. — Williamson  and  Me  Arthur  v.  Woolf 296 

2.  Same,  and  en  pais.— A  delivery  bond,  executed  by  the  defendant  in  det- 
inue, which  does  not  recite  any  fact  showing  that  the  defendant  had 
possession  of  the  property  at  the  service  of  the  writ,  does  not  estop  him 
from  showing,  in  defense  of  the  action,  that  he  did  not  have  the  posses- 
sion of  the  property  at  that  time;  nor  does  the  giving  of  such  bond 
operate  an  estoppel  en  pais  against  him.— (Explaining  aud  limiting  Wallu 

v.  Long,  16  Ala.  73JB.) — Miller  v.  Hampton 35? 

S.  By  deed. — At  common  law,  in  the  absence  of  an  actual  delivery  of  the 
property  itself,  a  gift  could  only  be  consummated  by  deed,  or  other  in- 
strument under  seal  ;  not  because  the  delivery  of  the  deed  was  held  a 
symbolical  delivery  of  the  property,  but  on  the  principle  of  estoppel — 
Connor  v.  Trawiek's  Adm'r 253 

4.  By  judgment. — On  the  execution  of  a  writ  of  inquiry,  after  judgment  by 
default,  in  trespass  for  taking  personal  property,  the  judgment  by  default 
estops  the  defendant  from  showing,  even  in  mitigation  of  damages,  that 
the  plaintiff  had  not  such  a  tit'e  as  would  authorize  a  recovery  ;  yet  he 
nay  show,  in  mitigation,  that  the  plaintiff  was  not  the  owner  of  the 
property,  as  that  fact  is  not  uecessarily  inconsistent  with  the  plaintiff's 
rixbt  to  recover. — StCtrett's  Executor  v.  Kaster 404 


k 


INDEX. 757 

ESTOPPEL— CONTINUED. 

r.  Conclusiveness  of  ad  '. — When  a  bill  in  chancery,  under 
oath,  is  offend  i'i  evidence  against  'he  complain  mt  in  a  subsequent  suit, 
he  is  not  thereby  (.stopped  from  denying  its  averments. — McT-emore  v. 
Nuckolls 591 

EVIDENCE. 

I.    Admissibility  and  Rilkvanct. 

1.  Rel  nee  by  common  Carrier. — Irian 
action   against  a   common  carrier,  to  recover   damages  for  injuries  to 

(or  where  the  same  matter  in  relied  <>n  as  ;i  de- 
fense against  an  action  by  him  to  recover  freight,)  the  fact  that  similar 
goods,  shipped  by  sea  to  the  port  of  delivery,  us'.ally  arrived  safe  and 
uninjured,  would  be  admissible  evidence  against  bim,  as  a  oircumi 
tending  to  show  t  at  any  damage  by  breakage  was  the  result  of  negli- 
gence ou  his  part;  and  -  eonverso,  the  fact  that  such  goods  usually  ar- 
rived in  a  damage !  and  broken  condition,  is  admissible  evidenc  for 
him,  as  tending  to  show  that  the  breakage  was  not  the  .result  of  negli- 
gence on  his  part.  (Explaining  and  1  miting  first  head-note  in  O'Qrady 
.     v.  Julian,  34  Ala.  88.)—  Steele  k  Burgi  sa  v.  Townsend 201 

2.  St  1 1  nt  of  slave — One  of  the 
questions  in  the  ruse  being,  whether  the  purchaser  was  guilty  of  negli- 
gence in  his  treatment  of  a  female  lave,  during  the  time  she  remained 
in  his  possession,  b  tore  he  tendered  her  back  to  the  vendor ;  and  it 
having  been  proved  that,  ti  s  badly  burned,  while  in  his  pos- 
session, by  the  accidental  exp'osion  of  a  fluid  lamp,  whereby  her  value 
was  greatly  impaired,  and  was  afterwards  sent,  by  him,  by  the  public 

to  the  place  of  the  vendor's  residence, — it  is  permissible  for  him 
to  prove  that  the  slave  violated  his  orders  in  using  the  lamp,  and  that 
he  was  advised  by  a  physician,  whom  he  consulted,  that  he  might  send 

her  by  the  »t  ige  with  pafety. — Stone  &  Best  v.  Watson 286 

:;    /'                                   -In  ascertaining  the  purchaser's  damages,  re- 
sulting from  a  breach  of  w.rranty  of  the  soundness  of  a  slave    proof  of 
the  value  of  the  slave  a  few  months  after  the  sale  is  admissible,  as  shed- 
light  oo  the  question  of  value  at  the  time  of  the  sale 2<% 

ibed  in  the  bill  of  sale  as  a  seamstr  bs,  it 
i*  p  jrmis  lil  le  I  >r  the  purchaser,  in  an  action  to  recover  damages  on  ac- 
coun'  of  her  unsoundness,  to  prove  what  would  have  been  b.  r  value,  if 
sound,  ''t.king  into  oo  D  the  fafct  that  she  was  a  good, 'No.  1 

seamstress  " 986 

.-.-  In  proving  th<  \  aluc  of  a  slave,  o  witness  cannot  be  allowed  to 
•  value  ■won:      •  which  she 

2C»S 

8.    /'  —It    is    permissible    for 

the  in  an  action  to  it  of  the  un- 

soundness of  a  slave,  W;!S  called 

In  to  the  slave,  and  as  who*e  proper!  ian  attended  ber  ;  but 

the  physician'  re,   which   WAS 

paid  by  the  pan  for  him,  until   : 

been  proved  that  I,  for  the  treat- 


763  INDEX 

D  EN  CE—  CONTINUED. 

ient  of  a  disease  existing  at  the  time  of  the  sale,  cud  that  the  eh  - 
were  corree t , 

7.   Relevan  iss. — In  trespass  for  an  assault  and  bat- 

tery, and  for  false  imprisonment,  evidence  of  an  arrest  and   fmprisc 
men*  without  legal  process,  or  under  legal  process  which  is  void  on  its 
face,  is  relevant  and  admissible  ;  sccus,  as  to  evidence  of  an  arre6t  and 
imprisonment  under  process  which  is  not  void  on  its  face. — Williams  v. 

ivey 198 

-On  the  execution  of  a  writ  of  in- 
quiry, after  judg  nent  by  default,,  in  trespass  for  taking  personal  prop- 
erty, the  fact  that  the  property  was,  at  and  before  the  lnvy  of  the 
cation,  which  constituted  the  trespass  complained  of,  in  the  possession  cf 
;.he  defendant  'n  execution,  is  competent  evidence  for  the  defendant,  in 
mitigation  of  damages,  as  tending  to  show  that  he  acted  in  good  faith 
in  having  toe  levy  made.— Sterrett's  Executor  v.  Kastf-r 404 

'.>.  Same  in  action  for  •breach  of  pri  arry ;  seduction. — If  evidence  of 
seduction  can  be  received,  in  any  case,  to  aggravate  the  damages  in  an 
action  for  a  breach  of  promise  to  marry,  it  is  only  where  the  seduction 
follows  the  p-omise,  and  is  effected  by  means  of  it :  seduction  prior  to 
fhe  promise  is  not  admissible  evidence.-  Espy  v.  Jones 

10.  Stme ;  want  of  chastity. — Acts  of  fornication,  committed  by. 
the  plaintiff  prior  to  the  defendant's  promise  to  marry  her,  and  in  which 
the  defendant  himself  participated,  are  not.  admissible  evidence  for  him 

it)  mitigation  of  the  damages 454 

11.  &  erflovnng  land. — In  an  action  to  recover  damages  for 
overflowing  lands,  a  recovery  cannot  be  had  for  injuries  accruing  after 
the  commencement  of  the  suit ;  but  evidence  of  such  inj  tries  is  admis- 
sible, with  a  view  of  affording  information  to  the  jury  of  the  consequen- 
ces of  the  diversion  under  sifiailar  circumstances  before  suit  brought. 
Polly  v.  M cOa'l 246 

12.  R  Uh.—In  trover 
by  the  wife,  after  the  death  of  the  husband,  for  the  conversion  of  a 
slave  belonging  to  her  statutory  separate  estate,  which  went  into  the 
defendant's  possession  under  a  mortgage  executed  by  the  husband  with- 
out authority  of  Liw,  and  was  accidentally  drowned  while  thus  in  his 
pusses-ion,  it  is  wholly  immaterial  whether  the  death  of  the  slave  0 
currcd  before  or  after  the  death  of  the  husband;  consequently,  the  ex- 
clusion' of  evideuce  bearing  on  that  question  is  not  a  matter  available  on 

erf  or. —  Patterson  v.  Flanagan. 427 

13.  Proof  oj\  demand  by-judgment  and  receipt. — In  an  action  by  t!:e  bailee  of 
goods,  agdnst  the  owners  of  a  steamboat,  for  negligence,  the  fact  in 
issue  being,  whether  the  owners  of  the  good*  had  demanded  of  plaintiff 
compensation  for  the  damage  sustained;  the  record  of  a  judgment  re- 
covered by  them  against  him,  for  the  injury  to  their  goods,  and  their  re- 
ceipt for  the  money  paid  by  him  in  satisfaction  of  their  demand 
competent  evidence  to  prove  the  demand. — MeGill  v.  Monette 2So 

1 J--   i'  e. — Where  the  probate  of  a  will  is  shown  by  a  trans- 

cript from  the  records  of  the  proper  court,  duly  certified,  other  parts 
of  the    transcript,  containing   entries  relating  to  the   testator's  estate, 


INDEX. ToO 

EVIDENCE— CONTINUED. 

which  can  have  no  other  effect  than  to  strengthen  the  conclusion  that 
the  will  was  admitted  to  probate,  are  merely  redundant  evidence;  and 
their  admission  ns  evidence  is,  at  most,  error  without  injury  — Jemison 
v.  Smith 140 

15.  Homicb  'bility  of  character  ofdeazised,  as  evidence  for  prosecution. 
On  a  trial  for  murder,,  the  prosecution  cannot  adduce  evidence  of  the 
peaceable  character  of  the  deceased,  when  it  has  not  been  assailed  by 

the  prisoner.— Ben  v.  The  State !) 

16.  Disturbing  nlijious  worship  ',  <  Under  an  indictment 
for  disturbing  religious  worBhlp,  the  defend  ml  has  aright  to  adduce 
evidence  of  his  good  character  ;  but,  until  he  has  done  so,  the  prosecu- 
tion cannot  'prove  his  bad  character  as  a  disturber  of  public  worship. 
Harrison  v.  The  State 61 

17.  B                                of  disturbance, — Evidence  of  the  fac:.  that  sim- 
ilar a<                arbanee  hail  been  perpetrated  by  other  persons  in  the 
same  church,  without  objection  or  notice  on  the  part  of  the  meuib 
irrelevant,  and  inadmissible CI 

18.  /  ■:ncr. — Und'-r  an  indictment  for  a  nuisance,  in  selling  and 
flirniahin 'unwholesome  water  to  an  entire  community,  the  prosecution 
may  adduce  evidence,  showing  the  deleterious  effects  of  the  Writer  on 
particular  persons,  members  of  the  community,  not  named  in  the  in- 
dictment.— Stein  v.  The  State     

■ 

.—The  indictment  having  beeu  found  iu 
May,  ISfiO,  and  the  pros"eutiou  having  proved  that,  in  the  year  1859,  all 
the  mi  at  on  the  defendant's  plantation  was  Consumed  by  midsummer,  and 
tbatmeatwas  afterwards  supplied  to  the  plantation  from  ce, — 
it  is  competent  for  the  defendant  to  prove  that,  in  December.  i£5S,  (out- 
(  the  time  covered  by  the  indictment,)  a  specified  number  of  hogs 
w,  re  killed  on  the  plantation,  the  meat  of  which  was  kept  there  for  ti.e 
use  of  the  slaves.— Check  v.  The  State 107 

II.     Admissions,  Oosj  Declarations,  R 

20.  J  /. — The  declarations  of  a  person  who  ins  the 

-  lion  of  slaves,  lo  the  effect  "that  they  had  been  leaned  to  him  by 
the  widow  of  S.,  and  were  held  ondi  r  the  will  of  S.,  to  be  returned  al 
to  be  divided  as  directed  by-said  will,"  are  competent  evi- 
dence against  a  Bub-purchaser  from  him  by  subsequent  cot. tract  :  so  also 
are  his  declarations,  "  that  there  was  a  dispute  about  the  title,  and  he 
JUCh  title  as  he  got  from  the  Bberiff.as  he-was  informed 
that  the  hi  irs  of  8.  would  claim  them  at  tho death  of  his  widow.'' — Jem '• 

son  v.  Smith \i0 

81.  A  Plain  vl 

having  proved, that  t'.  y  were  not  y  tlie 

idant  in  the  schedule  "f  liis  tax  ible  property,  wh 

to  the  assessor  on  oath,  and  werr-  ::-.  liudi   I  ; 

property,  which  .me  time  by  .    in  the 

defendant's  presence;  lowed, for  the  purpo-e 

of  rebutting  the  presumption  arising  from  this  <•',  [di  pi  ovc  that 


760  '     INDEX.  .  

EVIDENCE — cosmnujh), 

be  afterwards  corrects  i  his  schedule,  and  what  reaoons  he  then  assigned 
to  the  assessor  for  his  former  conduct;  and  the  fact  that,  when  first 
giring  in  his  schedule,  "he  asked  leave  of  the  assessor  to  correct  any 
mistake,  and  said  something  about  getting  advice.-'  does  not  affect  (he 
principle.  — McGehee  v.  Mahone 212 

22.  Admissibility  of  parly's  for  him. — The  declara- 
tions of  a  party  are,  prima  facie,  not  admissible  evidence  for  him  ;  and 
the  fact  that  a  witness,  when  cross-examiued,  "for  the  Fole  purpose  of 
coutradict  ng  him/'  touching  his  own  declarations  at  a  particular  time 
and  place,  states  "that  he  cannot  answer  the  question  without  giving 
the  declarations  of  the  defendant  made  at  the  same  time,''  is  not.  of  it- 
self, sufiioient  to  show  error  in  the  exclusion  of  the  defendant's  declara- 
tions   212 

23.  /  explanatory  of  possession,  and  against  interest.— Declarations, 
m.ido  by  a  person  who  has  the  p  session  of  a  slave,  to  the  effect  that 
he  holds  under  a  will,  and  claims  only  a  life-estate  in  the  slave,  are 
competent  evidence  on  the  principle  of  res  gestae,  and  as  admissions 
against  interest,  without  the  production  of  the  will. — Patterson  v.  Flan- 
agan    A 127 

24.  Declarations  of  rendu-  and  his  administrator,  showing  refusal  and  inability 
to  make  title.— In  an  action  on  a  title-bond,  against-  the  personal  repre- 
sentative of  ihe  vendor,  the  declarations  of  the  vendor  in  his  life- time, 
and  of  the  d  -fondant  after  his  qualification  as  administrator,  showing  a 
refusal  and  inability  on  the  part,  of  each  to  make  title,  are  competent 
evidence  for  the  plaintiff. — Bedell's  Adm'r  v.  Smith 54S 

25.  Admi:  tui  (jar  trust  admissible  against  trustee. — In  an  action 
brought  by  the  trustee  of  a  married  woman,  suing  for  her  use,  hor  ad- 
missions are  competent  evidence  against  him. — MeLemore  v.  Nuckolls,  591 

26.  Admissibility  of  bill  in  chancery  as  evidence  in  another  suit. — A  bill  in 
chancery,  sworn  to  by  the  complainant,  is  competent  evidence  against 
him  in  another  suit ;  and  the  fact  that  the  complainant  is  a  feme  covert, 
suing  by  her  next  friend,  does  not  vary  the  principle 591 

27.  OonclU8wene8S  of  such  admission'. — When  a  bill  in  chancery,  under  eath, 
is  offered  in  evidence  against  the  complainant  in  a  subsequent  suit,  he  is 
not  thereby  estopped  from  denying  its  averments 691 

28.  Declarations  of  grantor,  t. — To  show  that  an  ab- 
solute gift,  and  not  a  mere  advancement,  was  intended,  the  contempo- 
laneous  declarations  of  the  parent  are  admissible  evidence  for  the  child; 
"and  when  the  question  arises  between  distributees,  theieismuch  rea- 
son, as  well  as  authority,  in  support  of  the  proposition,"  that  the  sub- 
sequent declarations  of  the  parent,  expressive  of  his  intention  in  parting 
with  the  property,  are  admissible  evidence  for  the  same  purpose. — Au- 
trey  v.  Autrey's  Adm'r 542 

29.  Admission  of  one  defendant,  in  action  against  two. — In  an  action  against 
two  defendants,  the  admission  of  one,  being  competent  evidence  against 
the  maker,  cannot  be  excluded  fioni  the  jury  on  motion  ;  his  co-defend- 
ant must  limit  their  operation  by  a  request  for  proper  instructions  to 

the  jury.— Polly  v.  MeCall 246 

30.  Admissibility  of  dcclar  itiohs  as  part  of  res  gesta, — The  declarations  of  the 


INTDEX. 761 

EVIDENCE— CONTINUED. 

plaintiff  in  attachment,  to  his  attorney,  as  to  his  reasons  for  suing  out 
the  writ,  arc  admissible  evidence,  in  an  action  on  ihe  attachment  bond, 
as  a  part  of  tbe  res  gestae. — Wood  v.  Barker 311 

31.  Same, — The  declarations  of  the  vendor  of  a  slave,  made  "a  few  days 
after  the  sale,'1  to  the  effect  that,  If  he  had  known  that  tbe  slave  was  not 
going  to  Texas,  (whither  the  purchaser  had  represented  that  he  intended 
to  carry  him.)  he  would  not  have  sold  him,  are  not  evidence  for  the  de- 
chrant,  as  a  park  of  the  res  gestae,  in  a  suit,  involving  the  validity  of  the 
sale.— Webb  v.  Kelly 849 

32.  D  -The  declarations  of  a  save  while  sick,  as  to 
the  nature  and  symptoms  of  his  disease,  are  competent  evidence  on  the 
priuciple  ol                   -  well  as  1'oin  theneces-iiy  of  the  case,  although 

mode  to  a  person  who  is  not  a  physician. -^Stein  v.  The  State 29 

Aho,  Stone  &  Best  v.  Watson 286 

33.  Confessions  >u  criminal  case. — The  constable  who  had  the  custody  of  the 
prisoner,  a  Slave,  having  said  t'o  him,  ''If  you  did  it,  you  had  better  con- 
fess ;  it  w«m  d  be  best  for  you  to  tell  the  truth;  truth  is  always  the  best 
policy;  but,  it  you  did  not  kill  him,  we  don't  want  you  to  say  so," — held, 
that  there  was  nothing  in  these  facts  to  show  that  the  prisoner's  confes- 

.tly  made  to  the  constable  in  the  same  conversation, 
were  e!ici;ed  through  the  influence  of  either  hope  or  fear  ;  and  that  the 
confessions  were  admissible  evidence. — Aaron  v.  The  S:ate 12 

34.  Dying  declarations. — The  dying  declarations  «of  the  deceased,  re- 
specting  the  state  of  feeling  which  existed  between  himself  and  the 
prisoner,  arc  not  competent  evidence  for  the  prosecution. — Ben  v.  The 
State 9 

36.  Books  if  science, — Extracts  from  standard  medical  books  arecompetent 
evidence,  and  may  be  read  to  the  jury.— Merkle  v.  The  Stare 45 

III.     Burden  of  Proof. 

36.  On  ■  i.tylitjcncc  by  common  carrier.  —Where  the  bill  of  lading 
contains  an  express  Stipulation,  that  the  carrier  is  '  not  accountable  for 
rust  or  breakage,"  proof  of  injury  to  the  goods  by  breakage  neverthe- 

nat  & prima-facic  case  of  negligence   against   him;  and  the 

-   •   exercise  of  due  care  and  vigilance  on 

his  part  to  prevent  the   injury;  unless  t'/c  nature  of  !'•     inj   ry,  or  of 

••If  furnishes   evidence  that   due  care   and  dili; 
could  n<.t  hive  j,r.  vented  the  injury. — Steele  &  Burgess  v.  Townsend. .  201 

37.  On  question  <tf  d  On  final  - 
meat  of  an  administrator '»  accounts,  it  being  shown   that  a  decree  was 
rendered  by  the  probate  court  in  his  favor,  ordering  his  predecessor  in 

dministration  to  deliver  up  to  him  certain choses  in  action  belong- 
ing to  the  ectate,  the  onus  is  on  him  u>  prove  due  in  enforcing 
the  d<  •  on  :  but  wheth  gently  failed 
to  procun                      y,  or  failed  to  i                               r   obtainn  g 

.  ■    ■ 
e  of  proper    diligence,  he    might  hav.                   :.  — Wilkinson  v. 
Hunter 

88.  On  question  of  prescriptive  easement. — If  a  person  divert  waters  from'its 

51 


762        INDEX. 

EVIDENCE— CONTINUED. 

natural  channel,  by  means  of  a  ditch  and  levee  on  his  own  lands,  and 
thereby  injuriously  overflow?  the  lands  of  an  adjacent  proprietor  ;  and 
this  injury  continues,  without  increase,  for  ten  years, —the  jury  may  in- 
fer from  these  facts,  in  the  absence  of  all  other  evidence,  that  the  use 

was  adverse,  and  of  right. — Polly  v.  McC.tll 246 

i)9.  In  proceeding  for  recovery  of  legacy. — Iu  a  proceeding  before  the  pro- 
bate court,  after  the  expiration  of  eighteen  months  from  the  grant  of 
letters  testamentary,  for  the  recovery  of  a  residuary  legacy,  from  which 
is  to  he  deducted,  by  the  terms  of  the  bequest,  a  debt  due  iroui  the  tes- 
tator to  the  legatee,  it  is  incumbent  on  the  legatee,  and  not  the  executor, 
to  prove  the  amount  of  the  indebtedness  to  him  ;  and  unless  he  makes 
such  proof,  and  thereby  shows  that  there  will  be  a  sufficiency  of  asset? 
remaining  in  the  bauds  of  the  exeeutor  to  pay  all  the  debts,  chargea, 
and  prior  legacies,  he  is  not  entitled  to  a  decree.  — Bush  and  Wife  v. 
Cunningham's  Executors 327 

40.  la  action  on  special  contract  and  commoii  counts. — In  an  action  against 
an  incorporated  railroad  company,  founded  on  an  instrument  of  writing 
executed  by  its  secretary  and  treasurer,  which,  ai't<r  acknowledging 
the  receipt  of  certain  notes  as  a  loan  to  the  company,  stat?s  that  the 
"loan  is  made  on  the  conditions  and  terms  stated  in  the  resolutions  of 
the  board  of  directors  passed  on"  on  a  specified  day,  "and  recorded  on 
the  minutes/' — the  plaintiff  cannot  recover,  either  under  the  common 
money  counts,  or  under  a  special  count  on  the  contract,  without  prov- 
ing the  conditions  and  terms  of  the  loan,  either  by  the  production  of 
the  resolutions  of  the  board  of  directors,  or  other  compet  nt  evidence  ; 
and  the  lact  that  the  resolutions  are  in  the  defendant's  possession,  does 
not  affect  the  principle. — A!a.  &  Tenn.  Rivers  Railroad  Co.  v.  Nabors 

&  Gregoy 391 

IV.    Mattkrs  Judicially  Known. 

41.  Courts. — The  courts  of  this  State  will  take  judicial  notice  of  the  facts, 
that  the  proceedings  of  courts  of  ordinary  iu  a  sister  State,  under  the 
constitutional  and  statutory  provisions  in  evid.nce  in  this  cuse,  are  la- 
mentably loo  e,  aud  that  their  records  are  made  up  with  peculiar  care- 
lessness; and  will  therefore,  in  construing  the  records  of  those  courts, 
adopt  such  a  construction  of  the  language  as  will  be  most  favorable  to 
the  maintenance  and  regu'arity  of  their  proceedings,  without  supply- 
ing what  is  absolutely  wanting. — Jemison  v.  Smith 140 

42.  Sheriff's  term  of  ofjix. — The  supreme  court  will  take  judicial  notice  of 
the  time  when  a  sheriff's  term  of  office  expired. — Ragland  &  Howell 

v.  Wynn's  Adm'r 270 

43.  Abbreviations  in  pleadings. — Tha  appellate  court  will  take  judicial  no- 
tice of  the  fact,  that  the  word  l'aeteV,"  following  the  plaintiff's  name 
in  the  complaint,  is  an  abbreviation  for  the  word  administrator. — Mose- 
ley's  Adm'r  v.  Mastin ffl 

44.  Free-masons  as  charitable  corporation. — The  courts  of  this  State  will  take 
judicial  notice  of  the  fact,  that  the  society  of  free-masons  is  a  purely 
charitable  corporation. — Burdine  v.  Grand  Lodge  of  Alabama 385 


INDEX.  763 


EVIDENCE— CONTINUED. 

V.    Objections. 

45.  General  objection.  —A  general  objection  to  evidence,  a  part  of  which  ia 

admissible,  may  be  overruled  entirely. — Murphy  v.  The  State. 48 

Also,  Wood  v.  Barker 812 

Webb  v.  Kelly 349 

Sterrett'a  Executor  v.  Kaster  . . . 404 

46.  Same. — A  separate  objection  to  "each  sentence  of  eaeh  deposition," 
is  nothing  more  than  a  general  objection  to  each  deposition  ;  and  if  each 
deposition  contains  some  legal  evidence,  such  objection  may  be  r- 
ruled  entirely.— Taylor  v.  Strickland 571 

47.'  Objection  to  interrogatory,  when  meek. — When  a  deposition  is  taken  with- 
out filing  interrogatories,  an  objection  to  a  question,  on  the  ground  that 
it  is  leadi  g,  must  be  made  at  the  examination  of  the  witness,  and  comes 
too  late  when  made  for  the  first  time  at  the  trial. — Memphis  &  Ch 
ton  Railroad  Co.  v.   Bibb 630 

48.  Objection,  when  made. — An  objection  to  a  deposition,  on  the  ground  that 
no  notice  was  given  of  the  time  and  place  at  which  it  would  be  taken, 
cannot  (Code,  §  2328)  be  made  when  the  deposition  is  offer  d  in  evi- 
dence on  the  trial. — McGill  v.  Monette , 285 

49.  Waiver  of  objection  to  relevancy  of  evidence. — When  the  bill  of  exc  p- 
tions  shows  that,  on  the  trial  before  the  jury,  the  defendant  contended 
that  the  plaintiff  was  not  entitled  to  recover  without  proof  of-a  par  ie- 
ular  fact,  he  will  not  be  heard,  in  the  appellate  court,  to  allege  that 
proof  of  the  fact  was  irrelevant,  but  can  only  insist  that  the  evidence 
adduced  did  not  constitute  a  proper  legal  means  of  proving  the  fact.. .   285 

50.  Admission  of  one  defendant,  in  action  against  two. — In  an  action  against 
two  dofi  nd ants,  the.  admissftn  of  one,  being  competent  evidence  a 

the  maker,  cannot  be  excluded  f.  om  the  jury  on  motion  :  his  co-d>. 

ant  must  limit  their  operation  by  a  request/or  proper  instructions  to  the 

jury.— Polly  v.    McCall 24G 

51.  Error  without  injur;/  in  admission  and  subsequent  withdrawafyf  evidence. — 
The  erroneous  admission  of  evidence,  which  is  afterwards  withdrawn 
from  the  jmy,  and  which  they  are  expressly  instructed  by  the  court  not 
to  regard  for  any  purpose,  is,  at  most,  error  without  injury. — Williams 

v.  Ivey 220 

VI.    Opinion. 

52.  At  to  v.atur  .'■/)/  of  liquor. — A  witness  who  has  frequently 
drunk  fermented  liquors,  and  who  can  distinguish  them  by  their 
taste,  though  he  has  no  special  knowledge  of  chemistry,  is 

to  expre  on  on  the  question,  whether  lager  beer  is  or  is  not  a 

fermented  liqui  r.  -  Merkle  v.  The  State 45 

-Under  an  indictment  for  willfully  or  mali- 
ciously .-  i  rqale,  a  witness  who  was  acquainted  with  the  mule 
both  before  and  after  the  infliction  of  the  injury,  but  who  has  do  >kill 
in  veterinary  or  medical  science,  may  state  his  opinion  as  to  the  extent 

of  damage  caused  by  the  wound. — Johnson  v.  The  State. 72 

64.  As  expat. — A  person  who  has  ecrved  in  the  capacity  of  an  overseer 


764  INDEX. 

EVIDENCE— CONTINUED. 

oil  plantations  for  sixteen  months,  is  competent  to  give  his  opinion,  as 
an  expert,  in  reference  to  the  amount  of  food  which  is  sufficient  for  a 
plantation  slave. — Cheek  v.  The  State. 107 

55.  To  what  witness  may  testify. — A  witness  may  testify  that  a  slave  looted 
sick,- although  he  is  neither  a  physician,  nor  an  expert — Stone  &  Best  v. 
Watson 2SG 

VII.     Parol  and  Written*. 

56.  Admissibility  of  parol  to  vary  date  of  deed. — Parol  evidence  is  admissi- 
ble, to  show  that  a  deed'-or  bond  was  in  fact  executed  on  a  different  day 
from  that  stated  in  it. — Miller  v.  Hampton. '. 357 

57.  Same,  to  affect  hill  of  sale. — If  the  parties  to  a  contract,  for  the  sale  or 
exchange  o!  two  slaves,  reciprocally  execute  to  each  other  bills  of  sale, 
which  show  on  their  face  that  the  transaction  was  a  sale  ;  and  an  ac- 
tion is  afterwards  brought  on  one  cf  these  bills  of  sale,  to  recover  dam- 
ages for  a  breach  of  the  warranty  of  soundness  contained  therein, — 
parol  evidence  is  admissible,  to  show  that  the  contract  w<s  in  fact  an 
exchange,  and  not  a  sale. — McGehee  v.  Rump 580 

58.  Same,  in  aid  of  record. — A  grant  of  letters  of  administration  on  the 
estate  of  E.  M.  deceased,  when  it  appears  that  there  were  two  persons 
(father  and  son)  of  that  name,  each  leaving  an  estate  in  the  county  to 
be  administered,  may  be  shown  by  parol  to  refer  to  the  estate  of  the 
son. — Moseley's  Adm'r  v.  Mastin 171 

VIII.     Parties. 

59.  Discovery  at  law.— Where  interrogatories  are  propounded  to  the  de- 
fendant in  an  action  at  law,  (Code,  §§  2330-86,)  for  the- purpose  of  dis- 
proving the  defense  which  he  sers  up,  be  may  accompany  his  admission 
cf  the  particular  facta  called  for  by  the  interrogatories  with  a  state- 
ment of  additional  facts  in  avoidance  of  them  ;  as  where  he  pleads  pay- 
ment) in  an  action  on  an  open  account  due  to  a  partnership,  and  is  asked 
if  the  payment  was  not  made  to  one  of  the  partners  alone,  in  debts  due 
to  him  from  that  partner  individually,  he  may  state,  in  connection  with 
his  admission  of  that  fact,  that  the  payment  was  made  after  (lie  other 
partner  had  sold  out  his  interest  in  the  firm,  and  while  the  partner  to 
whom  it  was  made  was  the  sole  owner  of  the  goods,  accounts,  &c. — 
Crymes  v.  White  &  Johnson 47S 

(50.  Proof  of  correctness  of  demand  by  plaintiff 's  own  oath.  —  In  an  action  by 
late  partners,  on  an  open  account  due  to  the  partnership,  the  defendant 
having  introduced  evidence  tending  to  show  that,  after  the  dissolution 
of  the  firm,  he  had  paid  the  account  to  one  of  the  partners,  who  had 
bought  out  the  interest  of  his  co-partner,  by  crediting  the  amount  on 
debts  due  to  him  from  that  partner  individually,  the  other  partner  can 
not  be  allowed  to  testify,  (Code,  §  2313,)  in  rebuttal,  that  the  partner- 
ship was  not  dissolved  when  said  payment  was  made 473 

61.  E.csirr.ination  of  parties  as  witnesses,  in  appeal  case  from  justice's  court. 
In  appeal  cases  from  a  justice's  court,  where  the  amount  in  controversy 
exceeds  twenty  dollars,  the  statute  authoriz'ng  either  party  to  be  a  wit- 
ness in  his  own  behalf,  (Code,  §  2779.)  has  no  application  to  suits  by  or 


INDEX. ,  7G5- 

EVIDENCE— CONTINUED. 

against  corporations  aggregate.— Ala.  &  Tens.  Rivers  Railroad  Co.  v. 
Oak.-;  &  Mills 625 

IX.    Primary  and  Secondary. 

62.  Proof  of  account. — Books  of  account,  kept  by  a  deceased  clerk,  arc! 
•  all  other  entries  or  memoranda  made  iu  the  course  of  business  or  duty 

by  one  who  would  be  at  the  time  a  competent  witness  to  the  fact  which 
he  registers,  are  held  competent  evidence  from  the  presumed  necessity 
of  the  case;  but  the  reason  of  the  rule  ceases,  and  ihe  rule  itself  con- 
sequently fails,  when  it  appears  that  there  is  other  and  better  evidence 
of  the  same  facts;  as  where  it  is  shown  to  be  the  custom  of  a  bank  to 
pay  out  money  only  on  the  checks  of  its  depositors. — Bank  of  Mont- 
gomery v.  Plannett's  Adm*r 17S 

63.  Proof  of  written  notice. — In  an  action  to  recovi  r  damages  for  overflowing 
land,  proof  of  a  written  notice  by  plaintiff  to  defendant,  requiring  au 
abatement  of  the  ditch  and  levee  by  which  the  overflow  was  caused, 
being  collateral  to  the  issue,  is  within  the  exception  to  the  general  rule 
in  regard  to  the  proof  of  writings  ;  and  the  contents  of  such  notice  may- 
be proved  by  oral  testimony,  without  producing  the  writing,  or  account- 
ing for  its  non-production. — Polly  v    McCall 246 

X.     Records  and  Judgments. 

64.  Probate  of  foreign  will;  necessity  for. — A.  foreign  will  must  be  proved 
to  have  been  admitted  to  probate,  before  a  certified  copy  of  it  can  be  re*- 
ccived  as  evidence  of  title  to  personal  property,  or  become  admissible 
evidence  under  the  act  of  cougiess  of  1790.— Jemison  v.  Smith 140 

6C.  Same;  sufficiency  and  proof  of ', —A  transcript  from  the  records  of  a 
court  of  ordinary,  in 'Georgia,  properly  certified  under  the  act  of  con- 
gress of  17(.i0  ;  containing  a  copy  of  a  will,  an  affidavit  beneath  it  by  one 
of  the  subscribing  witnesses,  purporting  to  have  been  made  before  "J. 
Thigpcn,  J.  P.,"  to  the  effect  "  that  he  believes  that  he  a&gned  his  name 

.    at  the  last  part  of  the  within  instrument  of  Writing;'.'  followed  by  an  en- 
try, stating  tlia1  P>.  S.  and  J.  S.  were  "sworn  executors;"  and  other 
entries,  showing  that  the  persons  so  appointed  discharged  several  exe-        ^ 
cutori.il  duties,  and  were  recognized  by  the  court  as  executors,  -must,     „.-  • 
under  the  constitution  and  laws* of  that  State,  ns  proved  in  tins  case     " 
he  regarded  as  .showing  the  probate  of  the  will,  and  the  appointment 
and  qualification  of  the  executors .\  .  .  - 140 

.66.  .-  of  time. — Authorities" cifSJjjTon  the 

question,  whether  the  probate  of  a  will,  Dearly  sixty  years  ohj"would  be 

presumed  from  lap-e  of  time,  under  the  circumstances  of^thie  case MO 

'iiy  of  record  as  em  .wit. — In  detinue  for  a- slave) 

brought  by  the  vendor  against  the  purchaser,.— -the  material  inquiry 
being,  whether  the  purchase-money  was  furnished  *by  the  defendant ,  or 
by  the  slaT  himself;  and  the  defendant,  for 'The  pyjJSsfiTpf  showing 
that  the  plaintiff,  before  the  sale,  "knew'ftfat  the  sl.ve'h'rid  moi  ey,  .and 
permitted  him  to  have,  use  and  di<pofe  of  it  as  ^pleased,"  having 
read  in  evidence  a  receipt,  by  which  the  plainAffacknowlcdged  to  have 


766  INDEX. 

- , , 

EVIDENCE— CONTINUED.  * 

received  a  .sum  of  money,  for  safe-keeping,  from  the  slave  and  his 
mother, — the  record  of  a  suit  instituted  by  the  defendant,  after  the  sale 
in  the  name  of  the  owner  of  the  slave's  moher,  (but  without  his.  author- 
ity or  knowledge,  and  afterwards  dismissed  by  him,)  for  the  recovery  of 
this  money  from  the  plaiutiff,  is  not  competent  evidence  for  the  plain- 
tiff, "  to  explain  said  receipt,  and  to  show  that  the  defendant  regarded 
the  money  as  belonging  to  the  slave's  mother." — Webb  v.  Kelly 3^9 

C8.  Same. — In  detinue  by  the  wife's  trustee,  suing  for  her  use,  to  recover 
slaves  which  hie  had  bought  at  a  sal  s  under  mortgage  executed  by  the 
husband,  and  which  were  afterwards  seized  and  sold  by  the  defendant, 
as  sheriff,  under  execution  against  the  husband;  the  defendant  having 
introduced  evidence  tending  to  show,  that  the  money,  with  which, the 
plaintiff  paid  for  the  slaves,  was  [urn  shed  by  the  wife,  and  was  in  fact, 
as  to  the  creditors  of  the  husband,  his  properly, — the  record  of  a  chan- 
cery suit,  instituted  by  the  plaintiff  individually  after  hi3  purchase  of 
the  slaves  at  the  mortgage  sale,  for  the  purpose  of  foreclosing  a  mort- 
gage on  O'her  slaves  executed  by  the  husband  ;  to  which  suit  the  de- 
fendant was  not  a  party,  and  in  which  the  plaiutiff  was  charged  with 
certain  moneys  paid  him  by  the  wife,  is  not  competent  evidence  for  the 
plaintiff,  "to  show  that  creditors  of  the  husband  had  already  received 
the  money  paid  by  the  wife  to  the  plaintiff:"  as  to  the  defendant,  it  is 
res  inter  alios  acta. — McLemore  v.  Nuckolls 591 

60.  Same. — In  an  action  by  the  bailee  of  goods,  against  the  owners  of  a 
steamboat,  for  negligence;  the  fact  in  issue  being,  whether  the  owners 
of  the  goods  had  demanded  of  plaintiff  compensation  for  the  damage 
sustained;  the  record  of  a  judgment  recovered  by  them  against  Lin?,  for 
the  injury  to  their  goods,  and  their  receipt  for  the  money  paid  by  him  in 
satisfaction  of  their  demand,  a>e  competent  evidence  to  prove  tin  de- 
mand.— McGcill  v.  Monette 285 

XI.    Substance  or  Proof,  and  Variance. 

TO.  Variance  in  description  of  corporation. — The  society  of  free-masons  in 
this  State  being  incorporated  by  the  name  of  the  "  Most  Worshipful 
Grand  Lodge  of  Ancient  Free-masons  of  Alabama  and  it-  Masonic  Ju- 
risdiction," and  suing  by  that  name,  a  charter  granted  by  the  "Grand 
Lodge  of  the  State  of  Alabama,"  authorizing  the  persous  to  whem  it  is 
directed  "to  form  themselves  into*  a  regular  lodge  of  ancient 
free-masons,  by  the  name  of  Yorkville  Lodge  No.  131,"  sufficiently  ap- 
pears to^iave  been  issued  by  said  corporation,  and  the  misdescription 
does  not*  amount  to  a  material  variance. — Burdiue  v.  Grand  Lodge  of 
Alabama : 385 

71.  Same,  in  action  en  note. — The  maker  and  holder  of  a  promissory  note 
in>y,  by  subsequent  verbal  agreement,  founded  on  sufficient  considera- 
tion, change  the  rate  of  interest  which  it  bears  ;  yet  the  holder  cannot, 
in  a  suit- op,  the  no'e  i'self,  recover  on  such  modified  contract. — Hunt's 
Executor  y.  .Hall,. * 63* 

72.  Same,  in  claim  against  insolvent  estate. — When  an  attorney's  receipt  for 
•    a  note,  placed  in  uiifhandg.  for  collection,  is  filed  a3  a  claim  against  his 

insolvent  estate;  and  the*  accompanying  affidavit  of  the  creditor  states, 


INDEX. 767 

EVIDENCE— continued. 

that  the  attorney  failed,  through  ncgligeucc,  to  present  and  file  the  note 
as  a  claim  against  the  insolvent  estate  of  the  deceased  debt  iy  -proof  of 
the  attorney's  admission  that  he  had  collected  the  money  on  ffhe  note, 
and  of  his  promise  to  pay  it,  is  not  competent  evidence  for  th;>  creditor. 
Stubbs  v.  Bccne's  Adm'r '555 

73.  Same,  in  description  of  middle  name, — A.  misdescription  of  the  initial  let- 
ter of  the  defendant's  middle  name  is,  at  most,  an  immaterial  variance. 
Cleveland  v.  Pollard 481 

74.  Homicide ;  variance  in  name  of  deceased. — Where  the  indictment  alleged 
the  name  of  the  deceased  to  be  Louis  Boudet,  or  Boredet,  while  his  real 
name  was  proved  to  be  Louis  Burdet,  and  to  be  sometimes  pronounced 
a8  if  sp'  It. Bourcdet ;  and  the  circuit  court  thereupon  charged  the  jury, 
"that  if  Lis  real  i.ame  was  the  samejn  sound  as  if  written 
Br.redet,  or  60  nearly  the  same  that  the  difference  would  be  but  slight, 
or  scarcely  perceptible,  and  he  would  have  been  readily  known  by  his 
name  being  pronounced  as  if  written  Boudet  or  Boredet,  then  the  vari- 
ance would  not  avoil  the  defendant," — held,  that  the  ruling  of  the  courc 
was  substantially  correct* — Aaron  v.  The  State 12 

75.  Larceny;  variance  in  name  of  owner  of  stolen  goods.— Whero  the  indict- 
ment alleged  the  stoleu  go»ds  to  be  the  property  of  Jut 't  Antoine,  while 
the  proof  showed  that  they  belonged  to  a  Frenchman,  whose  name  was 
Juii  Antoine  in  French,  and  wi>o  was  "generally  called  as  if  his 
name  was  spelled  Jules  Antoine,'-' — held,  that  there  was  no  variance  or 
misnomer.— Point  v.  Thts  State 54 

EXECUTION.     • 

1 .  What  propt  rty  is  exempt  from  levy  and  sale. — If  the  defendant  in  execu- 
tion, being  the  head  of  a  family,  owns  but  one  horse,  and  no  mule  or 
oxen,  the  horse  is  exempt  from   levy  and  sale  under  execution,  (Code, 

§  2462,)  although  said  de'endant  aL:o  owns  slaves,— Cook  v.  Baine 37 1 

2.  Bight  of  defendant  in  execution  to  sell  or  exchange  property  exempt  from  levy 
and  sate.— The  act  of  February  14,  1854,  (Session  Acts  185;i-4,  p,  242,) 

iing  section  2464  of  the  Code,  also  repealed  the  prior  act  of  Feb. 
7,  (t'h  69.)  amendatory  of  said  section  ;  and  the  repeal  of  these  statutes 
removed  all  restrictions  on  the  right  cf  the  defendant  in  execution  to 
sell  or  dispose  of  property  exempt  from  levy  aud  sale 371 

3.  Jctwn  by  purchaser  of  exempt  property,  against  officer  making  levy.— A.  pur- 
chaser from  the  defendant  in  execution,  of  property  exempt  from  levy 
and  sale,  ma/  maintain  au  action  against  the  sheriff,  for  a  subsequent 
lew  and  sale,  without  making  the  affidavit  required  by  the  .-tatute(  Code, 

106)  from  the  defendant  in  execution 371 

4.  Sheriff's  right  to  commissions  for  execution  of  process  regular  on  its  face, 
but  issued  on  void  judgment— k  sheriff  is  not  entitled,  as  against  the  de- 
fendant in  ex  cution,  to  retain  bis  commissions  out  of  the  proceeds  of 
the  sale  of  property  under  an  execution  regular  on  its  face,  but  issued 
on  a  judgment  which  is  void  on  account  of  the  incompetency  of  the 
presiding  judge;  although  the  statute  (Code,  §  2284) protects  him  in 
the  execution  of  such  process.— Wilson  v.  Sawyer 55, i 


768  INDEX. 

EXEOUTORSAND  ADMINISTRATORS. 

1.  Validity  of  grant  of  administration. — The  failure  of  an  administrator  to 
give  boud,  as  required  by  the  order  appointing  him,  renders  the  grant 
of  administration  voidable  only,  and  not  absolutely  void. — Ex  parte  Max- 
well  • 306 

2.  Slime.— A  grant  of  letters  of  administration  in  chief,  when  there  has 
been  in  fact  a  previous  administration,  which  had  terminated  by  the 
death  of  the  administrator,  (these  facts  not  appearing  in  the  second 
grant,)  is  valid  as  a  grant  of  administration  de  bonis  non,  and  void  only 
as  to  the  excess  of  authority  which  it  purports  to  confer.— Moselcy's 
Adm'r  v.  Ma  tin 1?1 

S.  Same  —A  grant  of  letters  of  admini-tntion  is  not  void,  on  account  of 
the  non-existence  of  assets  in  this  State,  if  the  intestate  was  an  inhab- 
itant of  the  county  at  the  time  of  his  death,  (Code,  §  1667  ;)  nor  are 
letters  of  administration  de-  bonis  non,  gi anted  by  the  probate  court  of 
the  county  in  which  the  intestate  had  his  domicile  at  the  time  of  his 
death,  void  for  want  of  iroadministered  assets,  (Code,  §  1720,)  although 
they  might  be  irregular  and  revocable. — Watson  v.  Collins'  Adm'r. . . .  515 

■1.  Plea  of  nc  unqim  administrator. — In  an  action  brought  by  an  adminis- 
trator in  his  representative  character,  a  plea,  alleging  facts  which  show 
that  his  letters  of  administration  are  void,  for  want  of  jurisdiction  in 
the  court  by  which  they  were  issued,  is  a  good  plea  in  bar 515 

5.  IIoiv  administrator  may  or  must  declare. — The  words  "administrator,'.' 
&c.,  following  the  plaintiff's  name  iu  the  margin  of  the  complaint,  are, 
of  themselves,  mere  descriptio  persona;  but  an  averment  in  the  com- 
plaint, that  the  money  sued  for  will,  when  collected,  be  assets  of  the 
decedent's  estate,  is  sufficient  to  show  that  the  plaintiff  sues  in  his  rep- 
resentative  character 515 

6.  Same. — The  appellate  court  will  take  judicial  "notice  of  the  fact,  that 
the  word  "oefcaV,"  following  the  plaintiff's  name  in  the  complaint,  is  an 
abbreviation  for  the  word  administrator. — Moseley's  Adm'r  v.  Mastiu.. .  171 

7.  Revocation  of  letters  of  administration. — If  letters  of  administration  are 
granted  by  the  probate  court,  withiu  forty  days  after  the  death  of  the 
intestate  is  known,  in  contravention  of  the  order  of  prefereuce  pre- 
scribed by  the  statute,  (Code,  §§  1668-69,)  the  largest  creditor  of  the 
estate  may  proceed  to  obtain  a  revocation  of  such  letters ;  but,  to  enti- 
tle him  to  make  an  application  for  that  purpose,  he  must  show  that  he 
is  the  largest  creditor  of  the  estate ;  and  he  can  not  complain,  on  error, 
of  the  refusal  of  his  application,  when  the  record  does  not  show  that 

he  proved  that  fact. — Ward  v.  Cameron's  Adm'r. 622 

8.  Burden  of  proof  on  question  of  ddigence  or  negligence  by  administrator. 
On  final  settlement  of  an  administrator's  accounts,  it  being  shown  that 
a  decree  was  rendered  by  the  probate  court  in  his  favor,  ordering  his 
predecessor  in  the  administration  to  deliver  up  to  him  certain  choses  in 
action  belonging  to  the  estate,  the  onus  is  on  him  to  prove  due  diligence 
in  enforcing  the  delivery  of  such  choses  in  action  ;■  but,  whether  he 
negligently  failed  to  procure  the  delivery,  or  failed  to  collect  them  af- 
ter obtaining  the  possession,  the  onus  is  on  his  successor  to  prove  the 
amount  which,  by  the  use  of  proper  diligence,  he  might  have  collected. 
Wilkinson  v.  Hunter 225 


INDEX. 760 

EXECUTORS  AND  ADMINISTRATORS— cortixueu. 

9.  Liability  of  administrator  for  negligence,  and  proof  thereof. — An  ad- 
ministrator is  chargeable,  on  filial  settlement  of  his  accounts,  not  with 
the  nominal  amount  of  certain  cboses  in  action  belonging  to  the  estate, 
whifth  his  predecessor  in  the  administration  was  ordered  to  deliver  up 
to  him,  but  with  the  amount  in  money  which,  by  the  exercise  of  due 
dil  ge  ht  have  collected  on  them  ;  he  can  not  be  charged  with 

the  amount  of  an  account  on  a  third   person,  one  of  such  chosce  in  ac- 
tion, mercy  on  proof  of  the  solvency  of  the  debtor;  nor  with  the  amount 

bate  court  in  favor  of  his  pre  l<  c 
againi  e  r.witboit  proof  of  t^e  solvency  of.the 

defenda'  t  in  sai  1  decre  •  or  his  sure  ics ;  nor  with  the  amount  of  a  judg- 
ment q  favor  of  his  predeces^  r,  on  proof  that  one  of  the  de- 

t  of  land,  the  value  of  which 
is  not  shown,  and  that,  tie  other  defendant  r  ite  be- 

fore he  became  administnt  -r,  and  afterwards  returned  ami  sold  a  t  act 

Of  hind ?25 

executor. — On  final  settlement  of  the  ac- 
counts of  an  executor  or  administrator,  he  is  not  entitle  !  to  . 
counsel  fci  a  paid  by  him  on  account  of  services  rendered  in  conies 
proper  charge  against  him. — Anderson's  Executor  v.  Anderson's 

11.  A  ■■'-.  —  An  executor  or  adminis- 
trator can  ;i"'  complain,  on  error,  of  the  allowance  of  compensation  10 
the  gua  of  the  infant  distributees,  on  final  settlement  of 
his  accounts  and  vom  her-,  siece  he  is  not  thereby  prejudiced 61  _' 

See,  also,  Limitations,  Statute  or.  1. 

FRAUD. 

1.  What  constitutes, — In  an  action  on  a  note  given  for  the  purchase-money 
of  land,  a  special  plea,  averring  the  vendor's  misrepresentations  as  to  a 
material  matter,  and  consequent  injury  to  the  purchaser,  but  contain- 
ing no  averment  tha*;  such  misrepresentation  misled  the  purchaser,  or 
constituted  an  inducement  to  the  purchase,  or  was  relied  ou  by  him, 
fails  to  make  out  a  case  of  fraud. — Kannady  v.  Lambert 814 

FRAUDS,  STATUTE  OF 

I.  Promise  to  answer  for  debt,  Sfc,  of  another ;  whether  promise  is  original  or 
'literal. — (a  determining  whether  a  parol  promis:  to  pay  for  goods 
delivered  to  a  third  person  is  within  the  statute  of  frauds  or  not,  the 
decisive  question  is,  to  whom  was  the  credit  given  :  if  the  credit  was 
given  altogether  to  the  defendant,  his  promise  is  direct  and  original, 
and  not  withiu  the  statute  ;  secus,  if  any  credit  at  all  was  given  to  the 
person  to  whom  the  goods  were  delivered. — Boykin  &.  McR;  ejv.  Doht- 
onde  &  Co 50'J 

3.  Same,  — It  is  the  province  of  the  jury,  in  such  case,  to  determine  to  whom 
credit  whs  given  ;  and  it  is  their  duty,  in  deciding  that  question,  to  take 
into  consideration  the  extent  of  the  unler  taking,  the  expressions  used, 
the  situation  of  the  parties,  and  all  the  other  circumstances  of  the  case. 
The  fact  that  the  goods  were  charged,  on  the  plaintiff's  books,  to  the 

52 


770 INDEX. ___ 

FRAUDS,  STATUTE  OF— continued. 

person  td  whom  tbey  were  delivered,  if  unexplained  by  other  circum- 
stances, would,  be  very  strong,  if  not  conclusive  evidence,  that  the  defend- 
ant's promise  was  collateral ;  and,  on  the  other  h^iid.  the  fact  that  the 
plaintiff  and  defendant  have  both  acted  as  if  the  credit  was  given  solely  to 
the  defendant,  if  unexplained  by  other  evidence,  would  be  a  circum- 
stance strongly  tending  to  show  that  his  promise  was  direct  and  origi- 
nal ;  yet  neithen  of  these  facts,  is  conclusive,  but  they  a-e  susceptible 
Cf  explanation,  and  their  weight  as  evidence  must  depend  upon  the 
circumstances  of  the  particular  case 602 

3.  Sume. — A  decree  having  been  rendered  against  a  sheriff  and  the  sure- 
ties o:i  his  official  hond,  oa  final  settlement  of  his  accounts  as  adminis- 
trator virtute  officii,  a  verbal  promise  by  the  sureties,  made  to  the  plain- 
i  D  the  decree,  that  they  would  pay  an  item  cf  costs  which,  by  mis- 
take, had  not  been  taxed,  in  consideration  that  he  would  allow  a  i 

C  raie  decree,  which,  as  they  contended,  had  been  rendered  for  more 
than  was  justly  due, — is  an  original  undertaking,  founded  on  a  new 
consideration,  and  is  not  within  the  statute  of  frauds. —  Ragland  &  How- 
ell v.  Wynnes  Adnrr 270 

4.  Fraudulei  <pho  are  creditors  or  debtors. — A  trustee,  under  a 
deed  of  trust  for  the  benefit  of  creditors,  becomes  their  debtor  from 
the  time  he  receives  money  which,  by  the  terms  of  the  deed,  ought  to 
be  paid  over  to  them,  without  any  subsequent  violation  of  duty  on  his 
part,  or  demand  made  by  th%m  ;  and  the  fact  that  the  creditors  are  non- 
residents, does  not  affect  the  principle — McLemore  v. "Nuckolls 591 

6.  Validity  of  voluntary  conveyance. — A  contract  between  husband  and  Wife, 
by  which  a  separate  estate  is  created  in  the  wife  in  the  future  earning 
oi  herself  and  her  domestic  servants,  is  void  as  to  the  existing  credi- 
tors of  the  husband  :  and  slaves  purchased  for  her  by  a  third  p  rsen, 
and  paid  for  with  her  earnings  under  such  contract,  are  subject  to  the 
C  isting  debts  of  the  husband,  like  any  other  property  purchased  for 
her  with  the  husband's  money 591 

GARNISHMENT. 
See  Attachment,  3. 

GIFT. 

1 .  Requisites  of.— At  commor,  law,  in  the  absence  of  an  actual  delivery  of  the 
property  itself,  a  gift  could  only  be  coi  I  or  other  in- 
strument under  seal ;  not  because  the  delivery  of  the  deed  was  held  a 
symbolical  delivery  of  the  pr<  perty,  but  on  the  principle  <  f  «  stoppel. — 
Connor  v.  Trawiek's  Adm'r 25$ 

2 .  Gift  to  stave.— There  is  no  statute  or  rule  of  law  in  this  State,  which  pro- 
hibits a  gift  of  old  clothes,  or  other  articles  harmless  in  their  nature,  to 
a  slave,  without  the  knowledge  or  consent  of  his  master;  but  the  title 
and  p  issession,  on  the  delivery 'of  the  articles  to  the  slave,  must  be  re- 
ferred to  the  master. — Devaugl-.n  v.  Heath 52$ 

CUARDIAN  AND  W4RD. 
See  PLtADiFG  am)  Practice^  3. 


INDEX. 771 

HABEAS  CORPUS.— See  Constitutional  Law,  3.  6,  7— Criminal  Law,  57. 

HUSBAND  AND  WIFE. 

1.  Husband s  marital  rights  in  end  to  wife's  personally. — Prior  to  the  adop- 
tion of  the  statutes  of  tbis  State  securing  to  married  women  their  sepa- 
rate estates,  if  a  slave  was  given  by  a  father  to  his  married  dauglrt  r, 
or  was  purchased  by  the  daughter  at  the  administrator's  sale  of  her 
father's  estate,  and  was  not  in  either  ease  settled  to  her  separate  use, 
the  husband's  marital  rights  attached,  and  the  slave  became  his  abso- 
lute property. — Barns  v.  Hudson S'J  1 

• ;  reduction  if  Life's  ckoses  \ft  action  to  possession. — Where  the  slaves 
belonging  to  a  d  cedent's  estate  remain  undivided,  after  the  payment 
of  his  debts  aud  the  final  settlement  of  the  administration  on  his  estate, 
and  are  after  ■  ards  divided  by  consent  among  the  several  distributees, 
who  execute  reciprocal  conveyances  to  each  other  for  their  respective 
shares  ; — the  husband  of  one  of  the  female  distributees  thereby  acquires 
ft  complete  equitable  tit'e  to  the  s'aves  allotted  to  him  and  his  wife;  and, 
on  his  death,  while  thus  in  possession  of  them,  his  personal  representa- 
tive is  chargeable  with  th'  m  as  belonging  to  hits  estate. — Anderson's 
Executor  v.  Anderson's  Heirs C12 

3.  Stinie;  act  of  1S4S  not  retroactive. — The  law  is  settled  in  this  State,  that 
the  act  of  March  1,  1848,  sceuriug  to  married  women  their  separate  es- 
tates, does  not  affect  the  husband's  right  to  reduce  to  possession  his 
wife's  choses  in  action  which  accrued  prior  to  the  passage  of  that  statute,  612 

I  i  between  husband  and  wife. — At  common  law,  the  posses- 
sion of  personal  property  by  the  wife,  during  coverture,  is  the  posses- 
sion of  the  husband,  and  cannot  ripen  into  a  perfect  title  in  her,  as 
against  the  husband's  administrator,  although  it  is  shown  that  the  hus- 
band had  abandoned  her  when  her  possession  commenced  ;  that  he 
never  afterwards  returned  to  her,  and  never  asserted  any  claim  to  the 
property;  and  that  she  held  and  claimed  it,  as  her  own  individual 
property,  for  a  continuous  period  of  more  than  twenty  years.— Bell  r. 
Bell's  Adm'r    4C0 

5.  Husband's  rights  in  wife's  statutory  separate  estate. — Under  the  Code, 
(§  1983,)  the  husband  has  no  right  or  power  to  mortgage,  for  his  own 
individual  debt,  a  slave  belonging  to  the  wife's  statutory  separate  es- 
tate.— Patterson  v.  Flanagan 427 

(}.  Validity  of  sale,  by  wife  alone,  of  statutory  separate  estate;  vrfiether  action 
lies  to  recover  unreal  price. — A  sale  by  the  wife  alone,  without  the  concur-  ' 
rcice  of  her  husband,  of  property  belonging  to  her  statutory  separate 
estate,  is  absolutely  void,  and  passes  nothing  to  the  purchaser  ;  and 
the  wi;e  cannot  maintain  an  action  at  law,  in  her  ©wn  name,  to  recover 
the  value  or  agreed  price  of  the  property. — Alexander  v.  Saulsbury . . .  436 

7.  Contract  between  husband  and  wife. — A  contract  between  husband  and 
/wife,  by  which  a  separate  created  in  the  wife  in  the  futui- 
earnings  of  her  elf  and  her  domestic  servants,  is  void  as  to  the  existing 
creditors  of  the  husband  ;  and  slaves  purchased  for  her  by  a  third  per- 
son, aud  paid  for  with  her  earnings  under  such  contract,  are  subject  to 
the  existing  debts  of  the  husband,  like  any  other  property  purchased  for 
her  with  the  bus;  ami's  moDey. — McLemore  v.  Nuckolls 631 


INTO/X 

NSOLVEVT  ESTATES. 

ling  chiim. — A  claim  against  an  insolvent  estate,  or  the  affidavit  veri- 
it,  muat  be  regarded  as  filed,  within  t!ie  meaning  of  the  statute, 
1SJ7,)  when  it  is  delivered  to  the  probate  judge,  or  to  hfs  act- 
ing clerk,  in  his  office,  to  be  placed  and  kept  on  file  ;  but  merely  placing 
it  in  the  office,  not  with  the  proper  file  of  pap  is  belonging  t. 
and  without  bring;-;.  notice  of  ;  r  his  clerk,  is  not  a 

sufficient  filing. — Been»?s  Adm'r  v.  Phillips   Go'dsby  .\  Blevins 310 

1.  Si-    ■  >.  — When  an  attorney's  receipt  for  a  nob  his 

ctioa,  U  Bled  as  a  claim  against  his  insolvei 
failuj  ify  the  amount  of  the  note  is  no  objection    to   the  claim 

provided  the  amount   be  shewn  by   other   proof.— Stubba  v.  ]!. 

*Adru'r   5y- 

Varia  . — When  an  attorney1! 

placed  in  his  hands  lor  collection,  is  filed  as  a  claim  against  his  ineol- 

avlt  of  the  credito  tat  • 

the  al  .  .],  through  n  gligeucc,  to  present  and  file  I 

\  .'iit  estate  of  til  proof  of 

[mission  tl  at  he  had  collected  the  money  o 
and  ot  his 

INTEREST. 

'.  On  y  note. — Tim   maker,   and   bolder   of  a  promise 

may,  ot,  founded  on  suffieiei  ra- 

tion, change  the  rate  i  f  interest  whicli  it  hears  :  yet  the  i.oi 

.  the  no;e  i  s  If,  recover  on  such  modified  c(                   Mint's 
eutor  v.  Hall 

JUDGMENTS  AND  DECREES. 

C  '  as  bar. — Where  a  promissory  not'\  which  had 

[  the  tran-i  bands 

of  .  ti,>ns  to  present  it  to  the  maker  for  payment, 

and,  if  the  payment  was  refnsed,  to  put  it  in  the  hands  of  ai 
for  collection  by  .suit;  and,  paymen'  having  been  refused,  the  agent 
m  attorney,  who,  not  being  informed  pf  the  name  of  the 
real  owner,  brought  suit  on  it  in  the  name  of  the  agent,  and  the  action 
wa»Bace(  asfuUy  defended,  on  the  plea  of  set-off  against  the  payee,  —held, 
that  the  ju  lgmeot  in  that  aotioa  was  not  a  bar  to  a  subsequent  action 
on  tli'  he  owner,  who  whs  not  shown  to  have  had  notice  of  the 

pendenej  *>;'  that  action. — Lawrence  v.  Ware 47  , 

-.  Same. — The  recovery  of  a  judgment  against  a  Bberiff.and  his  sureties,  in 
au  action  on  his  official  bond,  by  two  joint  owners  of  a  chattel,  for  his 
wrongful  acts  in  selling  the  entire  interest  in  the  chattel  under  execu- 
tion against  one  of  the  joint  owners,  and  in  making  the  9j1c  at  a  place  \ 
not  authorized  by  law,  is  a  bar  to  a  sul  sequent  action  of  troi 
him,  by  the  joint  owner  who  was  not  a  party  to  the  process,  for  file  con- 
version arising  from  the  wrongful  sale  of  the  entire  interest  ;  and  tbc 
'i  the  bar  is  not  affected  by  the  fact,  that  only  nominal 
■damages  were  recovered  in  that  action;  nor  by  the  further  fad,  that 
the  action  itself  was  not  strictly  maintainable.  —  Hopkinson  v.  Shelton,  Sol", 


INDEX. 773 

JUDGMENT  AND  DEGREES— coxtinced. 

8.  Same,  as  evidence. — On  the  execution  of  a  writ  or  inquiry,  after  judgment 
by  default,  in  t'.espass  for  taking  persona]  property,  the  judgment  by  da- 
'  fault  estops  the  defendant  from  showing,  even  in  mitigation  of  damages, 
that  the  plaintiff  had  not  such  a  tit  e  as  would  authorize  a  recover)' ;  yet 
he  may  show,  in  mitigation,  that  the  plaintiff  was  not  the  <■ 
property,  as  that  fact  is  not  necessarily  inconsistent  with  th 

right  to  recover. — Ste  r<  tt's  Executor  v.  Caster 

4.  i  isof  foittl  decree, —  A  decree  of  the'probate  court,  which  ) 

ports  I  i  ed  on  final  8e(  (lemi  Dt 

vouchers  of  the  administrator  of  an  insolvent 
amount  which  had  come  to  his  bands,  th 

bursements,  and  the  balai  ct  Le  t  in  his  hands  fi 
creditors;  and  by  w!  ich  "it  is  ordered,  adjudged,  a 
tlie  account,  as  stated  by  th  ■  court,  " 

led  and  6ied  as  a  final  Bcttlerne  i  of  sai 
elusive,  until  reversed  by  ti  ribunal,  and  car; 

or  annulled  by  the  probate  court  at  another  term; —  •  u'r  v. 

Ytati 

I,  i;  oi  i'  e  probate  court,  w] 

a  rendered  on  finalst  ttlemeirtof  the  accounts  and  \ 
idministrator  of  an  ineoiv  i 
supposed  errors  and  mistakes  in  a  former  settlement  ing  a 

larger  balance  iii  the  administrator's  bands  for  distribution  among  the 
creditors,  and declares  th  e  forme  at  to  be  partial  only;  and 

by  which  '•  it  is  considered  and  decreed,"  that  tl 
the  former  settlement,  which  were  tben  declared  entitled  to  a  dividend 
:i:ty  per  cent.,  "  be  paid  in  full,  and  that  whatever  sums  shall  re- 
main, after  the  satisfaction  of  said  allowed  claim  lly  divided 
among  the  four  minor  heirs  of  "  the  decedent, — has  not  the  requisites 

oi  a  iin.il  decree,  and  will  not  support  an  execution  or  an  appeal 467 

0.   /  •-'  in 

rendered  on  pleadings  and  proofs  under  a  bill  filed  bj  tl 
cured  creditors,  against  the 

ition  of  the  .--.  i g  that 

the  complainants  are  entitled  to  relief,  and  ordering  the  nuutur  to  Stat 

count  of  the  several  debts  due  to  the  complainants  respectively, 
and  tl  imountfl  with  which  each  trustee  i  de,  and  to 

rata  dividend  of  each  creditor;  and  .. 

ort,— though  informal,  are,  whe« 
ther  and  in  conncc  ion  with  the  bill  and  tl,-  port, 

» 

. 

I«,  5vl 
7.   R  Path  of  thf  nomiirt  in  ■ 

judgm  ran  of 

his  personal  repi 

of  the  beneficial  ;  norai' 

ual  pltriiitill".— Baker,  Pry  i 


774  INDEX. 

JURISDICTION. 

See  Constitutional  Law,  3,  5,  6,  7. 
Criminal  Law,  56,  57. 
Dowkr.  ::. 

JlXTHf  OF  THE  PeACK,   1. 

JURORS. 

1.  Competency  ef  juror. — The  society  of  froe-maso-  s  being  a  purely  charit- 
able corporation,  a  member  of  the  society  cannot  be  said  to  have  the 
smallest  pecuniary  interest  in  the  event  of  a  suit  to  which  the  society  is' 
a  p-rty;  consequently,  he  is  a  competent  juror. — Burdiae  v.  Grand 
Lodge  of  Alabama , 

2.  Same,  —A  mere  occupant  and  tenant,  under  a  yearly  letting,  of  a  room 
used  by  him  as  a  sleeping  apartment,  is  not  a.  freeholder,  within  the 
meaning  ot  the  statute  (Code,  §  8583)  specifying  the  grounds  of  chal- 
leng !  to  jurors  in  criminal  cases. —  Aaron  v.  The  State 12 

3.  Challenge  of  furor. — In  all  trials  for  capital  or  penitentiary  offenses, 
(Code,  §3585.)  the  State  rniy,  at  its  election,  challenge  for  cause  a 
juror  who  has  a  fixed  opinion  against  capital  or  penitentiary  puuish- 
ments  :  yet  tl  e  statute  does  net  impose  on  the  court  the  duty,  ex  mero 
mota,  of  setting  aside  a  juror  'or  this  cause;  nor  can  the  prisoner  com- 
plain if  the  State  waives  or  forbears  to  exercise  its  right  of  cba'lenge. — 
Murphy  v.  The  State 48 

4.  0.  iuror. — If  the  jury,  in  a  criminal  case,  are  sworn  "well  and 
truly  to  try  the  issue  joined,"  tfcis  is  a  substantial  compliance  with  the 
requisition  of  the  statute,  (Coda,  §  3478,)  and  is  sufficient. — MoGuirc 
v.  The  State, 

JUSTICE  OF  THE  PEACE. 

1.  Civil  jurisdiction.  —Where  several  promissory  notes,  each  for  a  less  sum 
than  fifty  dollars,  are  executed  at  one  and  the  siime  time,  for  a  single 
debt  amounting  to  the  aggregate  of  their  several  sums,  and  are  made 
payable  on  the  same  day,  such  notes  are  within  the  civil  jurisdiction  of 

a  justice  of  the  peace. — Herrin  v.  Buckelew 670 

2.  Authority  of  intendant  of  Camden  as  justice  of  the  pecce. — The  4th  section  of 
the  act  "to  incorporate  the  town  of  Camden  in  Wilcox  county,"  (Session 
Ac's,  1841,  p.  54,)  taken  in  connection  witli  the  aat  ''to  incorporate  the 
town  of  Eutaw  in  Greene  county,"  to  which  it  refers,  although  it  may 
not  make  the  intendant  of  the  town,  ez  officio,  a  justice  of  ihe  peace,  con- 
stitutes at  least  a  valid  foundation  for  a  honn-fuk  claim  of  office  by  him  ; 
and  if  he  proceeds  to  perforin  the  duties  of  &  justice  of  the  peace,  or  the 
faith  of  his  election  as  intendant,  he  is  at  least  a  justice  de  facto. — Wil- 
liamson &  Mc Arthur  v.  Woolf 296 

Examination  of  parties  as  tsitnesses,  in  appeal  case  from  justice's  court. 
lu  appeal  cases  from  a  justice's  court,  where  the  amount  in  controversy 
'•iceeds  twenty  dollars,  the  statute  authorizing  either  party  to  be  a  wit- 
ness in  his  own  behalf,  (Code,  §  2779,)  has  no  application  to  suits  by  or 
against  corporations  aggregate. — Ala*.  &  Tenn.  Rivers  Railroad  Co.  v. 
Oaks  &  Mills «25 


INDEX. 775- 

LEGACY  AND  DEVISE. 

"keirs  of  the  ?;.xfy"  construed  to  vest  in  children  as  purchasers. — 
Where  the  testator  devised  and  bequeathed  hie  entire  estate,  l>oth  real 
and  personal,  to  his  wife  during  life  or  widowhood,  aud  directed  tbat, 
on  her  death  or  marriage,  his  red  estate  should  be  sold,  aud  all  his  prop- 
erty be  divided  into  seven  equal  parts,  '*and  then  disposed  of  as  /< 

''  the  body  of  Sarah    Ji.  Ihis  daughter  |  one  ,  said 

.use  and  ben  during  her  1*/$  but  r  dis- 

pose tl  ,  and  it  appeared  that   Sarah  B.  was  married,  and  had 

children  living  at  the  time  the  will  was  made,  and  that   the  testator,  in 
another  clause  of  his  will,  bequeathed  a  specific  earn  in  i  her 

directly,  in  the  event,  that  he  did    not  make   an  advanc  rju&l 

amount  to  her  during  his  life, — held,  thai  the  children  •  ,  who 

living  at  the  death  of  the  testator's  widow,  t.  rs  un- 

•dvrs  the  bequ  rat,  and  that  the  rule  in    Shelley's  case  did   not   apply. — 

(Sto  i  ) — Roberta  and  Wife  v.  Ogbourne 122 

!<■!/•  heirs  a/  i  v  be- 
quest, of  slaves  and  land  to  the  testator's  daughter,  "to  be  her  right 
and  property  during  her  life-time,  and  her  heirs'  aftei 
with  i  Be;  hut,  should  the  diewithput  an  heir,  then  the  prop- 
")iig  the  rest  of  my  [his]  heirs";  followed  by  a 
general  residuary  bequest  to  her,  i  f  all  the  rest  of  his  b  real 
and  personal,  "to  be  disposed  of  ks  fit  among  my  [hie]  law- 
ful heirs  at  my  [his]  death," — un  ration  of  the  rule  in  Shel- 
ntlie  daughter  ai  I  estate  in  the  s!av  a  -Par- 
ish v.  Parish 51 

for  life,  with  remainder  over;  uncertainty;  r< 

"[  will  and  bequeath  to  my  beloved  wife  Elizabeth  one  negro  woman. 

I  Jane,  to  her  her  life-time  ;  then  sh<\  :ind  all  her  increase  from 

te  '97,  to  be  equally  divided  among  the  five  children,  if  living  at 

if  not,  to  thai"  heirs  lawfully  begotten  ofthi  '  none 

such  heirs,  to  be  equa'Iy  divided  amoi  g  themselves  when  I 

child  conies  of  age  ;  and  after  my  wife's  life-time,  the  wench  to  lie  hired 

her  cl.il  Ircu  ;  if  her  labor  will   not   support  her  children, 

t.'iey  must  all  help  her,  as  they  .ire  to  reap  the  property  ;  and  my  de- 

■eo  should  he  kept,  together,  and  schooled   upon 

the  hire  of  the  ti  il  they  come  (,i  age  t"  demand  them— the 

ra  of  age;  and  till  then,  ihe 
■•'all  the  children,  both  black  and  wbito 
|     I  the  children  sir  uld  die  .before  it 

nally  divided  among  them  ;  and  if  any 

all  Bhall  make  him  <  qual  with  tbemsi  Ives." 

ii  uncertainty,  bu  i  lifc- 

V  five 

cliildi  and  the   1 

ror  of 
n   v. 
Smii  140 

:*!1  h:-  teal    and    person  il,  nqu  11  v    di 


rTG INDEX. 

CY  AND  DEVISE— continued. 

among  his  wife  and  three  children,  share  and  share  alike;  and  tfai 
entire  estate  should   be  kept  together  and  managed  by  his  executors, 
(who  were  also  appointed  guardians  of  his  children.)  until  his  ,  : 
chil  |,  lid  attain  his  majority,  when  h's  share  w;i- 

;spart  to  him  ;  the  share  of  each  daughter  to  be  allotted  to  her  when 
ttaioed  the  age  of  tweuty-o  \r  married  before  that  time, 

with  the  consent  of  her  guardians.  The  s  eond  clause  was  in  these 
werds  :  "  I  t  i-  my  will  a  ad  desire  tba  t.  Trer  all  my  just  debts  and  lia- 
bilities shall  have  been  paid,  the  sraid  executors  and  guardians  of  my 
er  to  my  said  wife,  from  time  to  time,  as  she  may 
call  for  the  same,  such  portion  or  part  of  theanoual  increase  or  profits 
of  all  my  said  pri  ire ;  the  remainder  to  be  by  them 

ted  for  the  benefit  of  my  id  children"."  Thefou 

in  town  lot,  to  pure1  •  r 

suitable  lot  in  the  same  vil'age,  ected  thereon  a  dwelling1* 

■,  "for  the  residence  and  1:  in  St  of  my  [hisj  said  wife,  after  such 

d  direct."'  The  third  clause 
directed  the  sale  of  the  plantation  on  which  he  r^ded,  and  the  li'th 
and  s;  tie  of  certain  personal  property  ;  while  the  seventh 
,  that  if  the  widow  or  any  ^ne  of  the  children  should 
fore  the  allotment  to  the  latter  of  their  respective  shares,  the 
Biirvh  I  of  the  deceased;  and  that  if  all  the 
children  should  die  before  their  respective  shares  had  been  allotted  to 
them,  then  the  widow  should  "have  the  proceeds  and  profits  of  all  the 
property  during  her  life.''  Held,  that  while  the  widow  was  entitled, 
under  the  secoud  clause,  to  demand  and  receive  from  the  cxeculors  the 
entire  annual  profits  of  the  property  after  the  payment  of  the  testator's 
debts,  .-he  had  no  light  to  use  them  for  the  purpose  of  investment,  or 
for  her  own  exclusive  benefit  in  any  other  manner:  that  the  children 
took  an  equal  interest  with  her  in  such  profits,  and  were  entitled  to  be 
maintained  and  educated  by  her  out  of  such  profits  ;  and  that,  while 
she  had  a  right  to  use  and  enjoy,  in  common  with  the  children,  the 
house  and  lot  purchased  by  the  executors  under  the  fourth  clause,  the 
house  and  lot  were  the  property  of  the  estate,  and  subject  to  distribu- 
tion under  the  first  clause. — Wynne  and  Wife  v.  Walthall 27- 

5.  Lapsed  legacies ;  statutory  provisions^ — Under  section  1005  of  the  Code, 
a  legacy  or  devise  to  a  child  or  other  descendant  of  the-  testator,  who 
dies  before  the  testator,  leaving  children  or  other  descendants  who  sur- 
vive the  testator,  does  not  lapse,  and  does  not  vest  in  the  administrator 
of  the  deceased  legatee  or  devisee,  but  passes  directly  to  his  children 
or  other  descendants,  in  the  same  p  oport:ons  as  if  they  took  as  his 
heirs-at  law  or  distributees;  and  his  widow  takes  no  interest  in  it. — 
"Jones  v.  Jones'  Executor 574 

0.  Validity  of  bequest  of  freedom  to  dace. — In  this  State,  a  direct  bequest  of 
freedom  t<j  slaves  is  void,  unless  their  emancipation  is  authorized  by 
sora^  special  legislative  provision  ;  and  where  the  testator  is  author- 
ized, by  a  special  statute,  to  emancipate  his  slaves  at  his  discretion,  but 
is  required,  as  a  condition  precedent,  previously  to  convey  a  certain 
quantity  of  land  to  the  judge  of  the  county  court,  in  trust  for  their  use, 


•_ INDEX 777 

LEGACY  AND  DEVISE— continued. 

as  a  security  that  they  shall  not  become  a  public  charge,  a  devise  of 
the  land  to  the  slaves  themselves,  i  i  a  w:.!l  which  is  not  sufficiently  at- 
•  1  to  pass  real  estate,  is  not  a  substantial  compliance  with  the  stat- 
ute; and  the  bequest  and  devise  are  both  void. — J.ttk  v.  Doran's  Ex- 
ecutors     222 

T.    Validity  q  ry  trust  fori  ion — 

A  testamentary  trust  Tor  the  emancipation  of  slaves,  '■'■  ion  of 

i  depend  ou  the  election  of 
s,  is  void,  because  e  n  eft  the  legal  capacii 

md  tbesame  principle  applies,  where  the  executor  i 
to  carry  the 
! 

CfessweH's  Exccdtor  v.  Walker 

lit— Where  a    sum   of 
queatbed  to  a  trnstooj  in' trust  for  a  debtor,  "n^t  subject  to  a 
debts  he  may. have  co  >ut   for  his   com:     I  pport,-'   it 

may  :ted  by  ^qu  I    (Code,  §  2966)  to  the  pay-' 

— Smi  h  v.  Moore 312 

.,-.  after  mab  [uests 

that  ! 

vided  into  three  equal  parts,  bequeathed  one  of  these  parts  to  1.1; 
drcn  of  a  debased  brother,  and  added  to  the  bequest  these  w.or 
Che  amount  I  now  am  indebted  to  them  is  deducted," — held,  thai 

■  pose  upon  the  children  an  abandonment  of  their  dt'Ms 
-t  the  estate,  as  a  condition  upon  which  they  should  take  th< 
ae\,  but  ouly  required  a  deduction  of  the  debts  from   the  legacy 
in  making  this  deduction,  the  aggregate  amount  of  the  debts  mui 
subtracted  from   the  entire  legacy   to  the    children   collectively  ;  and 
that  the  :. mount  to  which  the  children  were  entitled  under  the  bequest 
must  be  ascertained  as  in  cases  where  property    is  brought  into  ho'ch- 

iay,  after-deducting  the  specific  bequest 
t!i e  am  >: mt  of  the  debts  doe  to  the  children  must  be  first  added  to  the 
ral  resi  luuno  of  the  estate,  and  then  deducted  from  one-third  of 

that  amount. — Hush  and  Wife  v.  Cunningham's  Executors 327 

10.  Proceeding  for  recovery  of  legacy;  election. — Where  a  residuary  legacy 
contains  a  clause  directing  a  debt  due  from  the  testator  to  the  legate**, 
5  from  the  fact  that  he  had  made  an  unauthorized  sale  of  their 
a  tract  of  land,  to  be  deducted  from  the  amount  of  tin 
cy  ;  and  some  of  the  legatees  arc  infants,  and,  consequently,  incapable 
of  electing  to  ratify  tli<-  sale,—  the  chancery  court  alone  can  make  an 
election  for  them,  and  la,  therefore,  the  appropriate  forum  for  I 

thment  of  th»»  •••jfate  and  the  ascertainment  of  the  legacies 

\1.  Same;  burden  of  proof. — la  a  proceeding  h'fore  the  prolate   court, 
after   the   expiration    of  eighteen    months   from    the  grant  of  lett» 
testamentary,   for   the   recovery    of  a   residuary    legacy,  from   which 
is  to  he  deducted,  by  the  t^rmr;  of  the  bequest,  a  debt  due  from  the  tes- 
tator to  the  legatee,  it  is  incumbent  on  the  legatee,  and  not  the  executor, 

53 




DEVISE— CDNTISCED. 

toprr  •      nint  of  the  indebtedness  to\im  ;  and  unless  be  hi 

I0W6  that  chore  will  be  8 
-  to  pay  al 
u.nd  prior  legacies,  he  is  not  en; 

*■ 

•  UTK  OF. 

'   up- 

I 

mnftl, 

the  act  of  1821 
Adm'r  v.  Tu  nipeeed  and  Wife 

o 

I , 
»■ 


'•'(' ''  breach  of  a  contract,  is  nol 

fone  year,  (Code,  §2481.)-' 
''■    Same,  to  collector. — The  State  not  being 

expressly  inch  Digest,'  :;29.  >  90  )  wh  <■  . 

pre*'  :•*  sis  the  limitatioi.  of  actio:'!-  tiesofpub-    . 

b'c  ol^  statute  doe-'  not  apply  to  a  summary  proceeding  again -t 

'  t  ix-coll  i  sureties,  instituted  in  the  name  of  the  comptroller 

of  pi  ita,  for  the  use  of  the  Stale  —  Ware  v.  Greene 388 

S   -  .  libs 

of  the  wife  as  a  fe  ne  sole,  to  recover  her  interest  in  slaves  which 
accrued  to  her  before  hot  marriage,  and  which  vested  in  the  husband  by 
virtue  of  his  marital  tights  ;  and  an  amended  bill  is  afterwards  Bled,  in 
the  name  of  the  husband  and  wife,  after  the  statute  of  limitations  has 
md's  right  of  action, — the  statute  is  a  bar  to  the  ivlief 
h night,  although  the  statutory  liar  was  not  complete  when  the  original 

bill  of  the  wife  was  filed.-— King  and  Wife  v.  Avery 124 

1    Subsequent  promise  or  ach                 ;  — To  revive  a  debt  barred  by  the 
Statute  of  1  mitationa,  the  subsequent  promise,  or  acknowledgment,  must 
be  clear  and  explicit ;  but  it  is  no;  uecebsary  that  the  t 
that  promise  or  acknowledgment  is  established,  should  be  clear  and  ex* 
plioit. — Strickland's  Adra'r  v.  Walker 

SeO,  also.  A.DVSRSX  Posshssioh. 
LUNATICS. 
).   Liability  for  ,  —  Ai:  adult  person,  wl  •         ''*> 


_________  INDEX. 779 

LUNATICS— costixvkd. 

is  liable  on  an  implied  contract  for  i  I   liini,  gait- 

able  to  h  ;,1  con  lition  in  life ;  ami   when.'  no   guardian  has 

been  appointed  for  him,  an  action  for  tbe  valao  of  Buch  necess  »riea  must 

:  him  personally. — Ex  parte  Nortbing- 

ton 400 

2.  L  i  an  action  is  I 

ej  to 
be  uppomted  by  the  court,  if  necessary;  an^ 

the  pla  stiff  pr  ceed  with  bis  action,  ''unless  he  first  I  ;rdian 

appointed  l>y  the  probate  court,  and  notify  t  ''ney 

>i  bo  awarded  by  th    supreme  court,  al 

f  the  i  at  ot  an  attorney  for 

Uk  

.  ies.<—  In  ao  .     -  tos 

is,  if  tne  court  refuses  to  let  tbe  pi  im  i        bis  action, 

court,  and 

y  the^guard  icy  of  the  suit,"  a  m  ivill  be 

f  tbe' supreme  court,  ut  the  instance  of  l 

pel  the  appointment  of  ma  forth- 

>n 

.  •  A  notice,  an  u:i- 
recoi  q  sale 

-t  the  inoir  j  t:i  •  plain 

a  mortgage,  and  the  defendant  end-.'r  a  purcba  -  tule 

.  ge  to  the  jury,  in  favor  of  the 
pl.ti  '  !eover,  is  erroneous,  unlea    i  fc  tbe 

moit.  ily  recorded,  or  that  the  dol'en  -a:;-.        .  iceof 

Barker  v.  Bell ST.) 

Hon  a'  lav 

- te,  a  sale  of  mortgaged  lauds,  under  execution  at  bw, 

.  Mart  ot"  tbe  mortgage  I  s  no  title  qi  i  I   I  •  (ho  p.r- 

i  been  a  previous  Burn  il  title  by 

such  surrender  cannot  be  i.i  a  court  of 

law,  f  ,  objection 

•'  the  Mile  ; 

urged,  nor 

is  tin  *  purchaser  at  the  «  •  with 

:n  aa 
,  u  at  taw 

tion  of  a  ui  the  mort- 

gagee ftgtiust  liav  IHty  as  his  surety  on  a  note  d\:o  to  >-  ll 

•" 
of  the  note,  au'l  the  eul  » 


780 INDEX. 

MO  BTG  A  G  ES— costikc  ed. 

• 

ontsurty;  and  tbc  :nortgage  being  thereby  extinguished*,  it.  cannot 

then  be  aligned  to  the  surety  on  the  new  uote.  for  his  indemnification, 

i  though  the  assignment  be  made  with  the  a^ent  of  the  mortgagor, 

for  valuable  consideration,  and  contemporaneous  with  the  cance'.la- 

lion  and  substitution  of  the  notes. — Brooks  v.  Ruff Ho 

■<.  Parol  mortgage. — A  mortgage  of  personal  property,  given  to  indemnify 
the  mortgagee  against  liability  on  a  note  as  surety  for  the  mortgagor, 
being  afterwards  extinguished  by  the  cancellation  of  the  note,  and  the 
tuti  mi  of  a  Dew  note  in  its  stead,  with  a  different  surety  :  a  verbal 
agreement  between  the  mortgagor,  the  mortgagee,  and  the  surety  on 
the  new  hot*,  made  coufcemporaneou-ly  with  the  cancellation  and  sab- 
tution  of  the  notes,  to  th    effect  that  1  lie  mor';-. 

Biirety,  constitutes  a  valid  mortgage  as  between  the 

parties n)'> 

i  mortgage  wife's  separate  estate. — Under   the   Code. 

nd  has  no  right  or  power  to  mortgage,  for  his  own 

•  lu;vl  debt,  i  slave  belonging  to  the  wile's  statutory  separate  os- 

d  v.  Flanagan ii~, 

NON-CLAIM. 

Estates  or  Deix-dent?,  1. 

KIT. 

J.  When  nonsuit,  with  bill  of  .  taken. — A  nonsuit  maybe 
taken,  with  a  bill  of  exceptions,  (Code,  §  2357,)  in  consequence  of  the 
5 oppression  of  the  plaintiff's  deposition,  on  motion,  before  the  trial  is 
utefed  upon.— Douglass  v.  M.  &  W.  P.  Railroad  Co  566 

2.  Nbntyit  on  verdid/ai"  leas  than  $50. — In  an  ac  ion  on  a  note  giv«n  for  the 
purchase-money  of  a  slave,  damages  for  a  misrepresentation  or  breach 
of  warranty  of  soundness  constitute  a  good  set-off,  (Code,  S  '2240  ;)  and 
if  th?  amount  of  the  plaintiff's  recovery  is  thereby  reduced  to  le^a  than 
fifty  dollars,  he  cannot  be  nonsuited  under  section  2265. — Wood  &  Kim- 
brough  v.  Fowl  .r 2P6 

OVERRULED  CASKS. 

:.  Oayle  v.  Hudson,  10  Ala.  116,  overruled  by  Taylor  v.  Strickland 571 

2.  Sheppard  v.  Shelton,  84  Ala.  C52,  overruled,  ,es  to  first  head-note,  by 
Williams  v.  Ivey 220 

3.  Stalling*  v.  Neuman,  2(5  Ala.  3<)0,  lira  ted,  as  to  first  head-note,  to  cases 
commenced  before  the  Code,  by  Williams  v.  Ivey 220 

4.  Wallit  v.  Long,  16  Ala.  738,  explained  and  limited,  as  to  second  head- 
note,  by  Miller  v.  Hampton 357 

PARTITION". 

1.  When  sale  for  partition  may  be  decreed. — Under  the  act  of  February  5, 
1856,  (Session  Acts  1855-5G,  p.  20,)  an  order  for  the  sale  of  slaves,  for 
jtartition  amoti^  the  several  joint  owners  or  tenants  in  common,  should 
not  be  granted  by  the  probate  court,  on  the  application  of  the  guardian 


INDEX. 781 

PARTITION— continued. 

of  infante,  without  proof  thai  the  sale  would  bo  to  the  interest  of  (be 
infanta;  but,  when  the  application  is  (bade  by  adult  p  ',  Bach 
proof  is  not  necessary,  although  some  of  the  parties  interested  are  in- 
fants.— Coker  v.  Pitts «'-'  > 

See,  also,  Chancer  v.  9.  31. 

%  . 
PARTNERSHIP. 

l.    What  constitutes  partnen .  en  two Btearnboat  com] 

eogaged  in  carrj  i  and  freight  between  M 

Mobile  and  New  Orleans,  by  which  it  was  31  i  •    company 

should  furnish  a  specified  r.umber  ol'  boat?,  of  which  the 

ould  rota  n  the  property  and-assume  the  risk  ;  that  all  i  sses,  inju- 
ries, and  damages,  caused  to  third  persona  or  their  propel  •_ 
by  accidi  nt,  negligenc  ,  want  of  bkiil,  or  o'  >hoi:hl  be  borne 

solely  by  the  owners  of  the  boat  causing  or  austa  ning  such  loss  or  dam- 
age ;  that  the  compensation  of  agents,  ut  sp  to  attend  t<> 
the  joint  business,  and  all  I  I  for  injuries  and  damages  on  cot- 
ton shipped  from  ho  river  above  through  to  New  (Jrl<  t  be  a 
charge  again  t  the  joLt  fund,  and  be  borne  .by  th  .ordmg  to- 
their  respective  interests;  that  the  proceeds  and  earnings  of  each 
I.. .at.  deducting  therefrom  the  ru  aaes,  should  bt  ascertained 
monthly,  and  be  div.ded  between  the  parties  in  proportion  to  the  num- 
bered boats  furnished  by  them  respectively  ;  that  uniform  pi  ices  should 
be  established,  and  through  tickets  be  good  on  all  the  boats;  and  that 
neither  party  should  be  l.  in  any  Other  boal  running  on  the 
same  route,  or  make  any  private  contract  for  his  own  advantage,  which 
might  be  injurious  to  the  others, — constitutes  the  par,ti                   B  inter 

—Mealier  v.  Cox,  Brainard  &  Co : 

1.  Admission  of  new  partners. — New  members  cannot  be  introduced  into  an 

ug  rartnership,  even  by  a  majority  of  the  partners,  without  the 

ut  of  the  others;  yet,  if  the   Otbert  recognize  and  treat  t  e  new 

iers  tvs  partners,  aud  coniuue  the  business  with  them  \iud<  r 

is  suflicient  to  make  them  partners,  and  to  render 

the  oiiginal  articles  operative  us  between  them 156 

3.    )>  uisolulion. — Although  the  defendants  may  not 

committed  such  acts  of  misconduct,  or  been  guilty  of  such  willfjl 
v.olatkn  of  the   terms  of  the   contract,  as  would  authorize  a  court  of 

y  to  decree  a  dissolution  of  the  partnership  for  that  cause;  yet  a 

ittion  will  be  decreed,  where  it  appears  tint  they  refuse  to  Carry 
out  one  of  the  terms  of  the  articles  of  partnership,  and  insist  that,  in 
oiler  to  conduct  the  partnership  business  successfully,  that  stipulation 

be  either  changed  or  disregarded;  that  they  Ii  iv<     •  •     ed  to  DOr- 
re.'pjnd  with  the  complainants,  on  matters  connect*  d  with  the  I  artnor- 
•  of  fading  between  the  partiec 

•tension,  that  the  joii  an  be  no  longer  prosecuted  to 

the  mutual  advantage  of  all  thp  partners  ;  that  thee  is  no  partnership 

rty  which  might  be  sacrificed    by  a   tale,   and    that    a    dissolution 

would  not  probably  inffct  any  material  injury  01  •  y 156 

t.  Same ;  jurisdiction  not  affected  ly  stipulation  providing. 


: INDEX. 

;T.\EKSH1P— continued. 

tration. — A  stipulation  in  articles  of  partnership,  providing  for  p. 

ion  to  arbitration  of  all  mattecs  of  controversy  which  may  arise 
among  the  partners,  does  nut  take  away  the  jurisdiction  of  equity  to 
decree  a  dissolution l  :•  ■ 

PLEADING  AND  PRACTICE. 

I.    Parties. 
proper parh                  -The  oblige;  is  the  proper  party  to  sue  for 
the  breach  of  a  v  nda                                          29,)  al  hou 
a  part  of  i.he  land  for  the  u  se  ol  a  third  person,  and  has  sold  the  resid 
Bedell's  Adm'r  v.  Smith ' 

~.    When  I  ■. — A  bailee  for  reward,  having  de- 

livered the  goods  on  board  his  •        \  steamboat, 

their  o,  may  m  intain  an  action  in  his  own  cam- against  the 

owner  eamboat,  for  the  negligence  and  card 

.  its  in  the  transportation  of                                   pl&i  tiff  'ost  his 
reward*,  and  was  compelled  to  pay  damages  to  the  <:. 
McGill.w  Monette 

.';.  I'..,  tn  may  sue — Under  the  provisions  of  the  Code.  (■£§  2036, 
2132)  a  guardian  may  sue  in,  his  own  name,  for  the  use  of  Lis  ward;  to 
recover  damtges  for  the  c  inversion  oft  ,e  wa  d's  property. —  Longmirc 
v.  Pilkington 

4.  H  —When  au  action  is  brought  against  an  adult 
person  who  i~  non  eov^  be  must  beflefended  by  an  attorney,  to 
•pointed  by  fcfte  c  urt,  if  necessary  ;  and  if  the  court  refuses  to  let 
the  plaintiff  proceed  with  his  action,  "  unless  he  first  have 
appointed  by  the  prolate  court,  and  notify  the  guardian  of  the  pei. 
of  the  suit,"  a  mandamus  will  be  awarded  by  the  sup'eine  court,  at  ihe 
instance  of  the  plaintiff,  to  compel  the  appointment  of  an  attorney  for 
the  delendant.  —Ex parte  Northiug  ton 

-fi.  i  — Iu  a  summary  proceeding 

collector  and  his  sureties,  (Code,  g§  2596-97,  2628,2632,)  for  his  !': 
to  pay  into  the  State  treasury  the   taxes  collected   by  him,  the  unex- 
plained om'ssion  of  one  of  the  sureties  from  the  notice  is  fatal  to  the 
proceeding. — Ware  v.  Greene 38f. 

i>.  Parties  to  set.  fa. — On  the  death  of  the  nominal  plaiutift"  in  a  judg- 
ment, a  scire  facias  to  revive  it  must  be  prosecuted  in  the  name  of 
his  peisonal  representative,  and  cannot  properly  be  issued. in  the  name 
of  the  beneficial  plaintiff  alone,  nor  in  the  name  of  the  deceased  nomi- 
nal plaintiff. — Baker,  Fry  &  Co.  v.  Ingersoll 416 

II.      DECLAMATION,    OR    COMPLAINT. 

7.  Afi'jnmcnt  of  general  and  special  breaches. — In  an  action  by  the  purchaser, 
against  the  vendor  of  several  slaves,  a  count  oh  a  subsequent  contract, — 
by  which  it  was  agreed,  on  account  of  the  unsoundness  of  one  of  the 
slaves,  who  was  warranted  sound,  that  the  vendor  should  lake  buck 
said  slave,  and  should  pay  the  purchaser  a  specified  sum  of  ni 
which  sum  the  count  seeks  to  recover, — does  not  require  the  assignment 
of  a  special  breach,  (Code,  §  2235  ;)  nor  is  a  special  breach  required  in 


INDEX;  '    .  783 

PLEADING  AND  PRACTICE-. 

a  count  on  an  alleged  rescission  of  the  original  contract,  by  subsequent 
ment,  oh  account  of  the  unsoundness  of  on.5  of  the  slaves. — Stone 

&  Best  v.  Watson 236 

ment  that  a  slavi  ie  unsound, 

is  th  ' ,  aad  not  of  a  conclusion  from  facts 236 

"  administr 
ifce.,  following  (he  plaintiff  'fl  name  in  the  margin  of  the  complaint,  are, 
of  thi  but  an  averment  in 

.    '  loi    v.H,  v. 
<1  . 

r.— Watson  515 

the  '■'."  following  the  plain  v 

reviation  for  the  ys  Adm'i  ..  17! 

•'. — The  fo  l.iint 

precrib  d  I  ,  (p.  554,)   "fbi  '•      td  battery,"  :<nil   "for 

both  in  trespass. — Williams  v.  Ivey. ..  .198,  220 

$md 

it  probable  Cause,  sued  out  a  warrant,  commonly  ,ice- 

warra  the  plaintiff,"  i  lion; 

and  • 

odt  probable  ca  I  servant  .  I  pro- 

cured  riant  to  be  sueii  rant 

plaintiff  was  a  rested,  and  brought  before  the  said  justice  of 
who,  on  hearing  the  evidence  advanced  by  fie  defendants,  discharged 
plaintiff  from  the  arrest  under  said  warrant;*  but  a  count  which  avers 
that  the  defendants,  '-recklessly,  maliciously,  and  without  probable  cause 
therefor,  caused  the  plaintiff  to  be  arrested  and  imprisoned,  on  a  charge 
that  he  had  threatened  to  injure  and  destroy  the  lives  and  property  of 
the  defendant*,  and  that  plaintiff  was  imprisoned  by  defendant  tor  ten 

'  &c,  is  in  trespass  for  false  imprisonment. — Owsley  v%  M, 
P.  Railroad  Co 485 

III.      DEMUBRXB. 

Is  of  demurrer. —  A    misjoinder  of  counts  is  not 
available  on  demurrer,  unless  sp  as  a  ground  of  demur- 

rer, i  §  2253.)—  0  ".  &  W.  P. 

Ca 485 

'  ♦•   I '  '  [n  an  aclion  on 

a  p' ■'  ^omplaintcoj  igle  oount,  assigning  several 

breaches,  tl  ignmenta  is  net  a  ground  of 

implainL— Williamson  k  Mc  Arthur  v.  Wcolf . .   295 
■Where  tie    ori  -  inal  oom- 

judgment- 
entry,  that  a  demurrer  was  ftusttlned  "aa  to  the  Drat  two  counts  in  the 

complaint,'"  will   be  construed   to  apply  to  the  single  count  in   the 
it,  and  to  the  fir<-t  count  id  the  amended  complaint. — 
Btol  2Jo 


INpEX. 

TIOE— fioNTiyUED. 

IV.     Pt. 

\&.  Duplicity. — A  pi  tjthat  accouut. 

\\~l  

to  a  special 
under  "iir 

Sh  Lton 

* 

10. 

t 
party  to  tl 

lb-  the  fact,  tl 
or  by  the  ; 

30" 

rj  note.  which  had  b  by 

"  in  the  hands  of  an  i 
fc-it  to  th i"1 
men!  d,  to  put  it  in   the  hands  of  an 

lion  by   suit;     and,   payment   having   been   refused,  the 
the  note  to  an  attorney,  who,  not  being  informed  of  toe  name  of  the 
real  owner,  brought  Buit  on  it  in  the  name  of  the  agent,  and  the  action 
was  successfully  defended,  on  the  plea  of  setoff  against  the  payee,  - 
that  the  judgment  in  that  aetiou  was  not  a  bar  to  a  subsequent  action 
on  the  note  by  the  owner,  who  was  no!  shown  to  have  had  uoLice  of  the 

pendency  of  that  action. — Lawrence  v.  Ware 477 

21.  What  is  good  plea  in  bar. — That  the  plaintiff  is  one  of  the  obligors  «n 
the  bond  which  is  the  foundation  of  the  suit,  is  properly  pleaded  in  bar, 

and  not  in  abatement. — Mitchell  v.  Turner 538 

■  22.  Plea  of  ne  nnques  administrator. — In  an  action  brought  by  an  admin- 
istrator in  his  representative  character,  a  plea,  alleging  facts  which 
enow  that  his  letters  of  administration  are  void;  for  want  of  ju- 
risdiction  in  the  ceurt  by  which  they  were  issued,  is  a  good  plea  in  bar. 

Watson  v.  Collins*  Adin'r    ' .   515 

23.  Pka  >'/  fraud. — In  an  aetion  on  a  note  given  for  the  purchase-money 
of  land,  a  special  plea,  averring  the  vendors  misrepresentations as  to  a 
ma'erial  matter,  and  consequent  injury  to  the  purchaser,  but  contain- 
ing no  averment  thaf.  such  misrepresentation  misled  the  purchaser,  or 
constituted  an  inducement  to   the  purchase,  or  wa9  relied  on  by  him, 

tails  to  make  out  n  case  of  fraud. — Kannady  v.  Lambert . . . .  814 

2  4.  What  is  available  under  general  issue.— In  an  action  on  a  note  given  for 
the  purchase-money  of  land,  a  promise  by  the  vendor  to  cancel  and  de- 
stroy the  note,  in  consideration  of  the  fact  that  the  land  was  subject  to 
overflow,  when  he  had  represented  that  it  was  not,  is  available  as  a  de- 
fense under  the  pica  of  the  general  issue  ;  but  the  vendor's  misrepre- 


INPES         .__    _•__ 

PLEADING  AND  PRACTICE— coxtO 

icntatior.s  as  to  any  material  matter,  which  constituted  an  induce* 
to  the  purchase,  and  on  which  the  purchaser  relied,  is  only  available 
under  a  special  by  virtue  of  section  ?J40  of  the  Code.  . .   3H 

25.  Error  inff  demurt  .lin- 

ing of  a  demurrer  to  a  Bpe  sial  pica,  if  err.  neous,  is  notavailab]  ■  to  ti  e 
defendant)  -when  tbo  record  shows  that  he  had  the  full  benefit  of  the. 

earue  defense  under  the  genorul  issue '14 

■  tmption  as  to  pleading. — When  no  pleas  appear  in  the  record,  I 
appellate  court  will  presume  that  proper  pleas  were  filed   tu  let  in  the 
evidence  which  the  primary  court  admitted.— Wynne  v.  Whiaenaot 

PRESCRIPTION. 

See  AnrrKss  Possession.  2,  4,  6. 

ONS. 

1.  Presumed  c.zi-.                                                   -.—  In  tVe  absence  of  evi- 
doai                                be  courts  of  this  State  will  presume  that  the 
common  law  prevails  in  other  States,— Connor  v.  Tra wick's  Adm'r. ... 
Also,  Boruoi  v.  King's  Adm'r 

2.  Presumption  of  i                                 me. — Au th or i ties  cited  on  the, qucs-    . 
tion.  whether  the  probate  of  a  will,  nearly  sixty  roars  old,  would  be. 
presumed  from  la]               ..•.•under  the  oircums'arces  of  thN  case* — 
Jemisoo  r.  Smith 140 

HIBITION. 

1,   WhtniLlies. — Where  a  pwbate  as  granted  the  wiitof  Kabeat 

corpus  to  an  enrolled  conscript,  whose  petition  for  the  writ  shows  on 
its  face  that  said  judge  ha'=  no  jurisdiction  to  inquire  into  the  validity 
of  his  enrollment,  a  prshih'tion  will  be  awarded  by  the  supreme  court, 
without  a  previous  application  to  the  circuit  court,  enjoining  further 
n'fcbafe  judge ;  and  the  application  for  the  WTit  nuy 
.  id.1  by  th.-  enrolling  officer  who  b  is  the  custody  of  the  cdnscrlp  . 

Willie Cli", 

RIHEARING  AT  Li 

I  '1  tOT  of  the  Code,   au- 
thorizi  iring  after  final  judgment  at  law,  on  account   of  u  lost 

I  on,  which  has  place  been   fo 
dor s  not  apply  to  a  c;  :l>e  action  is  founded  on  a  pronii- 

m>te,  and  it  of  the  original  cons'dera- 

tioM  of  :.  ais  v.  McCaropbell 

r  fraud. — Where  the  de- 

.  died  by  the    ourt,  as  the  condition  of 

a  conUnoaoee,  I  .^rncnt  for  a  pari  of  the  pi  dntifF.s  demand, 

and  confesses  ju  he  cannot  afterwards    ohtiin    a 

•  jig  a?  to  tl  d  judgment  2K»8,)  on  the  ground 

-urprisc,  accident,  Bwtake  or  fraud 533 


786  INDEX. 

]    J  i  the  death  of  tl  I  plaintiff  in  a  judg- 

,  ive  it  mas!  Cuted  in  the  name  of 

and  en:  not  propt-rly  be  issued  in  the  name 

'.cial  plu'ntiir alone,  nor  in  the  name  of  the  deceased  norai- 

(i  r  plaintiff. — Baker,  Fry  &  Co.  v.  Li.  

SBT-OPF. 

I.    tyfiat.  is  available.  — :  be  purchase-money 

■  oi  a  shwe,  damages  for  a  mier  i  ;   or  breach  of  warranty  cf 

soundness  c  i  good  set  08',  under  section  2240  of  the  Code. — 

i  &  K  mbrough  v.  Fowler 292 

vted'.-in  an  action  on  a  note  given  for  the  purch:.se-money  of  land, 
the  "vendor's  mi  repi         tali  on  as  to  any  material  natter,  which  < 
tuted  an  inducement  to  the  purchase,  and  on  which  the  purchaser  re- 
tted, is  available  under  a   special  pl->a  of  set-off,  by  virtue  of  ?< 

of  the  Code,  but  is  not:  available  under  the  -ne. — Kan- 

rl 314 

1FI<\ 

I.  ('  ■  iff  convicts  to  penitentiary. — In  conveying  a  con- 
vie',  to'  the  penitentiary,  it  is  the  duty  of 'the  sheriff  to  travel  ''the  land 
1  •)'..•  1  sually  travelei"  within  this  State,  (Code,  §  3031  ;)  and  he  has 
tiority  to  carry  him  through  other  States,  although  "the  land 
route  usually  traveled,"  between  the  court-house  of  the  county  and  tljc 
penitentiary,  may  be  through  those  States. — Greene  v  McGehee II  i 

*.  Commissions  for  execution  of  ■  •  ■-  on  Us  face,  but  issued  on  e 
y&Agment. — A  sheriff  is  not  entitled,  as  against  the  defendant  in  execu- 
tion, to  r< tain  his  1  out  of  the  proceeds  of  the  sale  of  prop-, 
city  under  an  execution  reguhr  on  its  face,  but  issued  en  a  judgment 
which  is  void  on  account  ol  the  incompetency  of  the  presiding  ji 
although  the  .sta'.mc-  (Code,  ■§  2284)  protects  him  in  the  execution  of 
such  p!  .""'S3. — Wilson  y.  Sawyer 559 

1 .  What  •■>  ••■■■  arc  actionable. — Words  spoken  of  another,  imputing  to  him 
tiio  statutory  offcuse  of  trading  with  slaves,  (Code,  §  S2S5,)  are  not  ac- 
tiona'ile,  since  tbe  offense  does  rot  involve  moral  turpitude,  and  the 
pfinlsthment  affixed  to  it  is  not  infamou?. — Heath  v.  Devaugbn. 60(J 

SLAVES. 

I.  Validity  of  contract  made  with  slave.- — \  ry  note,  given  to  a 
dare,  for  money  borrowed  from  him  by  a  white  man,  is  void,  and  will 
aot  BUpport  an  action. — Martin  v.  Reed 1C-1 

*..  itdJfM.— Although  the  sale  of  any  article  to  a  slave,  without  the  con. 
of  the  master,  specifying  the  article,  is  a  penal  offense  under  the  lawn 
of  this  State  ;  yet,  if  the  contract  has  been  fully  executed,  and  (lie 
property  delivered  to  the  slave,  it  docs  not  lie  tn  the  mouth  of  a  third 
person,  when  sued  by  the  ma's ter  for  a  trespass  to  the  property,  to  al- 
lege the  illegality  of  the  contract.—  Sterrett'e  Executor  v.  Raster 404 


INDEX.  787 

SLAVES—  CONTI?wKD. 

S.    Validity  of  contract  for  ;■<  >r  knowingly  permits 

his  slave  to  acquire  money,  and  to  pay  it  out  to  a  third  person,  in  a 
fair  busine*  transaction,  he  cannot  afterwards  reclaim  it;  but,  il 
third  person  rec<  ivea  and  holds  the  money  for  thebenefit ol 
and  as  his  bailee,  and  it  is  afterwards  used,  v.  ithout  the  fa 

r,  in  purchasing  the.  slave  for  himself  fro  i    the  n  aster,  th< 
tract  is  void,  and  do  ■■■   the  master's  title. — Webb  v.  Kelly         » 

4.  Gift  to  slave. — There  is  no  statute  or  rule  of  law  in  this  Sti 

liibita  a  gift  of  old  clothes,  or  other  art                                                  i  e,  to 
a  slave,  without  the  kuo                     ■  ■nseut  of  h                                     itle 
and  possession,  ou  the  de'ivery  of  the 
/'erred  to  the  master. — Devaugan  v.  Heath » .   593 

b.   Validity  q 

freedom  to  slaves  is   void,  unless  their  emancipation  i  d  by 

som»  special  legislative  provision  :  and   wl  is  author- 

ized, by  a  special  statute,  to  emanoip'.      '  I 

is  required,  as  a  condition  precedent,  previously  to  convey   a  cert 
quantity  of  land  to  the  judge  of  the  county  court,  i:i  trust  for  their 
as  a  security  that  they  shall  not  become  a   public  charge;  a  devise  of 
the  land  to  the  slaves  themselves,  in  a  will  which  is  a<  itly  at- 

tested to  pass  real  estate,  is  not  a  substantial  compliince  with  the  sta 
ate,  and  the  bequest  and  devise  are  both  void.— J«ick  v.  Doran's  Ey- 

ecutors 222 

ntary  trust  f\  w. — 

A  testamentary  trust  tor  the  emancipation  of  slaves-,  the  .execution  ei 
which  is  made  to  depend  on  the  election  of  freedom  by  the  si 

i,  is  void,  because  they  have  not  the  1<  :y   to  make  the 

election  ;  and  the  same  principle  applies,  where  theciccutor  is  dir 
to  carry  the  -laves,  for   the  purpose  of  emancipat  ng  them,  "to  6ome 
bod  slavehokHog  State,  or  to  the  republic  of  Lib' 

may  prefer." — Cresswell's  Executor  v.  Walker i84 

1.  Etna                         1800  not  retroactive.— Thee                  lary  25,  1860, 
"to  amend  thclaw  in  relation  to  the  emancipation  of  slaves,"'  (Session 
Acts  1859-60,  p.  28,)  does  not  affect  wills  which 
probate  before  its  passage. — Jones  v.  Job  - Rfa 

LMARY  PROCEEDINGS. 

1.  Parties  to     . 
collector  ci ,  |  96-97,  2628,2632,)  fo 

to  pay  in*.  >.  -  nry  the  tax  y  him,  the 

of  one  of  the  sureties  from* the  notice  \b 
proccedirg. — V>  

!  in   the 
act  of  18.32,  (Clay's    D  •        .  -irsa* 

the  limitation   il  aet'o  I 

'    cm  not  ftp]  ;| 

<if  the   ..oii.ntrollcr  of  public  ac- 

".ou   to,  for  th<  

3.   Ointinuanse  and  atuco  .. 


IN 

--"—  C0STI1 

motion  v. ill  be  discontinued,  unless  some  action   is  bed   on  then 

in  torm,  although  the  "stay  law*'  prohibits  the  rendition  o( 
-  '  I  -nil  ;  yet  the  plaintiff  may  keep  alive  bis  notice, by 

id,  accord  adopted  at 

or  by  some  action  of  the  court  contio\ 

a'  S.  Vr.  Alabam  ipaoy 60? 

I  ol    the  act 
'•to  regulate  judicial  proceed  Bth  February,  1861, 

andcomruouly  known  i  [Called  Session  of  1861, 

p.  3,)  which  prohibits  l'i>-  rendition  of  judgment  at  the  return  term  of 
any  "su;t,  writ,  summon^,  complaint  or  bill,"  applies  to  a  summary  pro- 

and  motion,  on    the  part  cf  an  Incorporated  raili. 
company  a  .  the  charter  of 

the  a  aj.in  .-  aU'bortZfi  '  .    rot  at   the 

I  has  been   Se  ■•  1   twenty  days 
previous  thereto. 

SURETIES 


-.  h 

A  new  contract  between  the  creditor  and  the  principal  debtor,  made 
withoct  th  ■  consent  of  tbe  surety,  and  founded  upon  valuable  consid- 
eration, by  which  tbe  tkne  of  payment  iseztended,  discbarges  the  surety, 

igh  DO  other  day  of  payment  is  fixed.— Cox  v.  Mobile  &.Obio  I 
road  Co 

2.  Saint;  U3vry. —  in  agreement  by  the  principal  debtor  to  pay  usuri' 
inter,  at  in  future,  in  consideration  of  the  creditor's  promise  t:>  extend 
the  day  of  payment,  beim:  void,  does  not  discharge  the  surety  ;  wheth- 
er the  actual  payment  of  usurious  interest,  by  the  principal    would  dis- 

.  ge  the  surety,  quaere? 885 

.  A  ■  Wk  -.  ureties  -•;<  official  '>onJ.—  One  of  the  sureties  on 
a  sheriff?  official  hon  1  cannot  maintain  an  action  at  law  on  th*  bond, 
against  the  other  sureties,  for  their  principal's  default.— Mitchell  v.  Tur- 
ner    588 

TAX 

1.  Tux  on  a&ction'talci. — The  tax  imposed  b  y  law  on  the  gross  amount  of 
auction  suits,  (Code,  §  301,  tiibd.  17,)  in  to  be  assessed   against  and    ' 
paid  by  tbe  auctioneer,  and  not  by  the  owner  of  the  property  sold. — 
The  State  v.  Lee  k  Norton 102 

TAX-COLLECTORS 
See  Si'MMwtv  Proceedings,  1,  3. 

TRESPASS. 

!.  Actim  ',jeorporation.—  An  action  of  trespass,  for  fsl#c  impris- 

onment, lies  against  a  corporation. — Osvslpy   v.  M.  &  W.   P.  Railroad 

Company 481 

Whit  coniHM  ■>/.  —  Where  a   botMfl  is  erecttd  partly  on 

the  hud*  of  th<i  plaintiff,  an       I   I  '■  mda  of  the  do- 


___ INDEX. 789 

TRESPASS— con  risusD. 

fendaut ;  but  is  not  shovra  to  have  been  so  erected  by  agreement  with 
the  plaintiff,  urder  circumstances,  which  would  justify  its  removal  as  a 
mere  chattel, — the  mere  fact  that  the  greater  part  of  it  is  on  the  de- 
fendant's lands,  givea  him  no  right  to  enter  on  the  plaintiff's  lands,  or 

to  remove  the  house  therefrom.— Boiling  v.  Whittle 268 

.    //.'   inci     ■  *■ — The  forms  of  com; 

prc-orib*  d  Ln  the  Code,  (p.  664,)  "  for  assault  and  battery,"  and  "for 

False  imprisonment,"  are  both  in  trespass. — Williams  v.  Ivoy 1"J8,  220 

.  —  A.  count  which  avers  that  the  defendants,  "maliciously  and 
without  probable  cause,  sued  out  a  warrant,  commonly  called  a  peace- 
warrant,  again-t  the  plaintiff,"  i-  in  case  for  a  malicious  prosecution; 
and  so  is  a  count  which  avers  that  the  defendants,  "recklessly  and  with- 
out probable  cause,  through  their  agent  and  servant,  caused  and  pro- 
cared  a  peace-warrant  to  be  Sued  out,"  J.e.,  "on  which  said  warrant 
plaintiff1  was  a:  rested,  and  brought  before  the  said  justice  of1  the  peace, 
nrho,  on  hearing  the  evidence  advanced  by  the  defendants,  discharged 
plaintiff  from  the  arrest  under  said  warrant ;"  but  a  count  which  avers 
that  the  defendants,  "recklessly,  maliciously,  and  without  probable  cause 
therefor,  caused  the  plaintiff  to  be  arrested  and  imprisoned,  on  a  charge 
that  he  had  threatened  to  injure  and  destroy  the  lives  and  property  of 
the  defendants,  and  that  plaintiff  was  imprisoned  by  defendant  for  ten 
."  &c,  is  in  trespass  for  false,  imprisonment. — Owsley  v.  M.  &  W. 

P.  Railroad  Co 485 

anrg  c<f  evidence. — Iu  trespass  fur  an  assault  and  battery,  and  for 
false  imprisonment,  evidence  of  an  arrest  and  imprisonment  without 
legal  process,  or  under  legal  process  which  is  void  en  its  face,  is  rele- 
vant and  admissible  ;  feme,  a3  to  evidence  of  an  wrest  and  imprison- 
ment under  process  which  is  not  void  on  its  face. —  Williams  v.  Ivey. . .  1SS 
6.  Evidence  in  mitigation  of  damages. — Ou  the  execution  of  a  writ  of  Inquiry 
after  judgment  by  default,  in  tiespass  for  taking  personal  property,  the 
fact  that  the  property  wa*.  at  and  before  the  levy  of  the  execution, 
which  constituted  the  trespass  complained  of,  iu  the  possession  of  the 
def'  ndant  in  execution,  is  competent  evidence  for  the  defendant,  in  mit- 
igation ol  damages,  as  tending  to  show  that  he  acted  in  good  faith  in 

having  tlie  levj  made. — Sterrett's  Executor  v.  Raster 404 

—  In  such  case,  tho  ja  lament  by  default  estops  the  defend  nit  from 

.en  in  mitigation  of  damages,  tint  the  plaintiff  had  not  such 

a  title  as  would  authoriz :  a  recovery ;  yet  he  may  show,  in  mitigation, 

that  the  plaintiff  was  not  the  owner  of  the  property,  a",  that  fact  is  not 

nee  -     tent  with  the  plaintiff's  right  to  recover 404 

qu. — In  ti.  to  the 

jury.  •    -  tgivi    vindictive  dams,"  they 

'          .'!  maliciously  c.r 
the  plaintiff's  kind*,  iu  a    rude,  aggravating,  or  insulting  manner,''  is 
erroi                                i                             ts  the  standard  of  liability. — Dc- 
v&ughn  v.  II<-.a»h ........  62S 

,  IS. 


790 

trtuL — To  pubject  a  married  woman  b 
;  1.  to  the  payi  con- 

fir  with  a  ; ■     '       -   ip  of  which  he  it 

and 
I  ' 
■  i  h  the 

law  casta  upon  I 

'  i     i 

lar.i  461 

— Id  an 
i    :  ber  ad' 

'   '  •       .  voluntary 

;    -Bo   i     • 

')R  AND 

— V.  here  a  purchaeer 
cnt« .'  I  land  und  r 

:'  the 
purc.i  :m  ol  the 

iiot  be  coi  ■  i  !   .   ■  d  for 

the  co  such  ootid  y  one 

who  |  •  i  j  i  t  i  one  of 

who:i 

r  oi  the  pu    "i   ■  ion  is 

Martin 

'    f 
and,  for  that  r 
tender  of  a  deed  by  t  r,  \o 

ight  of  UUe- 

boi-'.  the  purchaser  It  no  ce        « 

.     I       '    . .  i  i. lb  failure  to 



■ 

:        tltle-b    :i  ■! 

Nona 

life-time,  and  of  th  i  administi 

•  liiy  on  the  part  of  each  t  i 

eomp  648 

— Uuder  I 

7,  §  81,)  there  w«$  no 
Pjilieable  to  an  action  /or  a  b;cac!i  of  a  Tendor'i 

title-bond &*8 

ft.  Pjrti  .  |    1  by  tho  Teudor  at  the  r<_- 


IND-]  791 

Vendor  and  furcdas; 

qv.oet  of  :;  ,  ( 

•  ac 
l  n  of 

t 

Of  by 
t  r  had  no  .....  648 

1 

i 

c  ionnl  prop 

lith 

'-- 

; .  I 
■' 
■ 

pen,  -! 

1  DBtl  •  nfy. 

•  '   -  ther 

Dssoaj 

d 

i  e  n- 
|  r  cud 

qua  l  cecoton no 

1  ■• i  ('  /  eqftime. — Au  >,!iea- 

ite  of  a 
»  '  •  . . . .  140 

relation! 
<  |    aod  1 

c  the  latter,  ; 

t  | 

r  |]    

I 

;•■>':■■     I  "  (!> 

,  !  ...    674 

I       VIBE. 

I 
< 

I 
'  ■  r   u»f,    n  I 
plaintiff—] 
I 


_ 

I 

I  by  the  ad; 

on: 

latin* 

C'l'. 

y  the  com  - 

not,  .  :  ctent  as  a  witn 

aistrator,  in  tai  ght  b; 



0.  l ' 

ivil  <  OSes," 
•  apply  to  a  witness  who  i- 
fined  in  jail  undi  r  aju  oee  ;  but,  if  the  pro; 

uceofthe  wiUic.-s  can  he  pro 

>a  ought  to  •  Kelly 84t 

■ 
on  b  detlnqe  bond  may  be  relea.-ed,  and  examined  witness  for  his 

piin'cipal,  on  the  execution  by  (he  latter  of  a  new  bond  good 

and  suflk-i'  i  ,  but  it  is  not  permissible  to  en  irety's 

name  from  the  ootid,  agaiust  the  obji  ction  of  the  oblige  .  titute 

the:  -urety  in  his  stead 

'  •''.  to  prove    cotU 

'.■  -In  an  action  again  t  a  railroad  company 
common  carrier,  to  recover  damages  tor  the  loss  of  ;  shag* 

the  plaintiff  may  prove  the  contents  and  value  of  his  trunk  by  hi* 

own  oath. — Dou  glai  -  v.  M.  &  W.  P.  Railroad  Co 68C 

9.   Examina  \rtits   as   witnesses,    in    •  ''s  eour'.. 

In  appf;il  cases  from  a  justice'*  court,  where  the  amount  in  controversy 

exceeds  twenty  titute  authorizing  either  party  to  he  a  wit- 

i.i  his  own  behalf,  (Code,  £  2779,)  has  no  application  to  suits  by  or 

't  oorporatio  is  aggregate. — Ala.  £-  Tean.  Rivers  Railroad  Co.  v. 

t-ll 


s 


